Shambhu alias Shambhu Dayal vs Rent Control and Eviction Officer/Addl. City Magistrate 7th and Others

Rakesh Tiwari, J.—Heard counsel for the Petitioner and perused the record.

This is tenant''s petition challenging the validity and correctness of the impugned order dated 13.11.2003, passed by the Rent Control and Eviction Officer/Addl. City Magistrate, 7th Kanpur Nagar-Respondent No. 1, declaring vacancy of the premises in dispute.

The case of the Petitioner is that he is tenant of one room and a verandah since 1968 on a monthly rent of Rs. 100, the house was purchased by Smt. Mithlesh Tripathi-Respondent No. 3 from the original owner Sri Chailbehari Nigam by means of registered sale deed dated 16.4.2001. The construction has khaprail or tiled roof.

One Sri Jai Narain Jha, a prospective allottee moved an application for allotment, u/s 12 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''U. P. Act No. XIII of 1972'') which was registered as Case No. 75 of 2001. The building was inspected by the Rent Control and Eviction Inspector who submitted his report on 22.9.2001 that claim of prospective allottee is that the Petitioner is residing since 1987 without allotment order whereas the case of the Petitioner-tenant is that he is residing in the accommodation in dispute since 1968, i.e., prior to coming into force of the U. P. Act No. XIII of 1972.

While declaring the vacancy, it has been held by Respondent No. 1 that prima facie, the receipts filed by the tenant appear to be forged as a subsequent affidavit had been filed by the landlord inter alia, stating that no such receipts had been issued.

The order declaring vacancy has been challenged on the ground that the rent receipts were issued by the erstwhile landlord, contained in Annexure-3 to the writ petition and that the name of the Petitioner as tenant is also recorded in the sale deed dated 16.4.2001 in favour of the Respondent No. 3.

The case of the Respondent No. 3 is that the rent receipts filed in the shape of Annexure-3 to the writ petition are forged and fictitious documents. He filed panchshala entries prior to 1987 which do not show that Petitioner was ever recorded as tenant rather he is recorded as tenant in the panchshala of 1987-92 which proves that he was not a tenant since 1968 onwards till 1987 as claimed by him.

It is submitted by the counsel for the Petitioner that the Rent Control and Eviction Officer has disbelieved the rent receipts submitted by the Petitioner alleged to have been issued by the erstwhile landlord before he had sold the house and has ignored the entries made in the nomination form of the Petitioner when he was employed in the J. K. Jute Mills which is contained in Annexure-5 to the writ petition. He submits that once the tenancy of the Petitioner is admitted prior to 5th July, 1976, same stood regularized u/s 14 of U. P. Act No. XIII of 1972.

The counsel for the Petitioner further submits that Section 11 of U. P. Act No. XIII of 1972 prohibits letting of any building by the landlord except in pursuance of the allotment order issued u/s 16 and Section 15 of U. P. Act No. XIII of 1972 creates an obligation on the landlord to intimate the vacancy to the District Magistrate of a building falling vacant by reason of cessation to occupy it or by the tenant vacating it or by release from acquisition or any other manner, whatsoever and then the District Magistrate will proceed to make allotment u/s 16 of U. P. Act No. XIII of 1972. Thus, it is statutory duty of the landlord to inform the vacancy to the District Magistrate and allow the letting only in pursuance of the allotment order of the District Magistrate.

Counsel for the Petitioner then contends that the limited ground on which the vacancy may be declared or there will be deemed vacancy of the building u/s 12 of U. P. Act No. XIII of 1972 will not include deemed vacancy on the ground of unauthorized occupation as such an occupant may be treated as trespasser who can be evicted only in ordinary course of law and cannot be evicted under the provisions of U. P. Act No. XIII of 1972.

According to the learned Counsel for the Petitioner, prohibition of the allotment without allotment order under Sections 11, 13 and 15 of U. P. Act No. XIII of 1972 is operating against the landlord and once the landlord has violated the mandate of the statute and allowed the allottees without allotment order, he will not get the benefit of declaring the vacancy on the ground of unauthorized occupation of the tenant without allotment order.

It is urged that deemed vacancy u/s 12 of U. P. Act No. XIII of 1972 arises only if the tenant or the landlord cease to occupy the building and there is no provision of tenant being ceased to occupy the building on the ground that he is in occupation without allotment order and he is an unauthorized occupant.

He further contends that the application for allotment moved by Sri Jai Narain Jha was collusive application with Smt. Mithlesh Tripathi-Respondent No. 3 who had purchased the house in dispute vide sale deed dated 16.4.2001. According to him, since filing of the application for allotment, Sri Jai Narain Jha had not participated in the proceedings and has not come forward even before this Court, as such, the entire proceeding of getting the vacancy declared is sham and fictitious.

He relied upon Section 21(1) of U. P. Act No. XIII of 1972 which provides that no application for release may be filed by the landlord and no such application of landlord may be entertained in case of building being occupied by the tenant since before its purchase unless a period of 3 years elapsed since after on such purchase, landlord serves notice in that behalf to the tenant not less than six months before such application.

Sri H. N. Singh urged that in the instant case, the proceeding of release for declaring vacancy started immediately after purchase of the house by Smt. Mithlesh Tripathi but he submits that no information, whatsoever, was ever given by her to the Petitioner. In this regard, the question of law on letting without an order of allotment and its consequences was considered by a Full Bench of this Court in Nootan Kumar Verma v. A.D.J., Banda, 1993 (2) ARC 2004: 1993 (2) AWC 1090 (FB), wherein it was held that such occupation and agreement is void. The majority view in the judgment is that an agreement of lease between the landlord and tenant for letting an occupation of a building in contravention of the provisions of U. P. Act No. XIII of 1972 is void and such agreement is unenforceable in law as such no decree for eviction of tenant may be passed in favour of the landlord on that basis. He states that position of law was further clarified by Hon''ble the Apex Court in Nootan Kumar and Ors. v. Second Additional, District Judge and others, 2002 (2) ARC 645: 2003 (1) AWC 213 (SC), wherein, it has been held by Hon''ble the Apex Court that the Full Bench of this Court in Nootan Kumar''s case (supra) has ignored the binding precedent of law propounded that in absence of mandatory provision obliging the eviction in case of contravention of the Act, the lease would not be void and that similarly in view of Section 13 of U. P. Act No. XIII of 1972, a person who occupies the accommodation in dispute without a valid order of allotment shall be deemed to be unauthorized occupant of such premises and he shall be treated to be a trespasser and that remedy for ejectment of trespasser to get back possession in suit which could always be filed.

Relying upon paragraph 7 of the writ petition, he urged that in the present case, the landlord has purchased the house in dispute by means of registered sale deed dated 16.4.2001 wherein a clear statement of fact contained in the sale deed that the accommodation is in the tenancy of the Petitioner and the landlady will have right to collect rent. Once the present landlord had purchased the accommodation in dispute with tenancy, she has no legal right to challenge the validity of tenancy and she cannot be allowed to pursue the remedy of declaration of vacancy on the ground that tenancy of the Petitioner is void. It is urged that even assuming, without admitting that the aforesaid rent receipts are forged the Respondent No. 3 the landlord cannot deny the factum of Petitioner being tenant prior to 1993.

Counsel for the Respondents has relied upon paragraphs 7 and 12 of the counter-affidavit wherein it is averred that the rent receipts of three months, i.e., dated 2.6.1968 for the months of May and June, 1968, dated 3.1.1968 for October to December, 1968 and dated 6.1.1970 for December, 1969, at the rate of Rs. 100 per month filed by the Petitioner-tenant are forged documents as the same have not been issued by the erstwhile landlord who has stated so on affidavit before the courts below. The allegation of forgery of rent receipts though has been denied by the Petitioner during the course of arguments but no rejoinder-affidavit has been filed rebutting the aforesaid averments. Therefore, the averments contained in the counter-affidavit are treated to be correct in view of settled law propounded by Hon''ble the Apex Court in Choksi Tube Company Ltd. v. Union of India, 1979 (2) SCC 179 and Smt. Naseem Bano Vs. State of U.P. and others,

The counsel for the Respondents has vehemently denied that Petitioner was tenant in the accommodation in dispute prior to the date of purchase of the house by the Respondent No. 3. He stated that it is incorrect to say that in the sale deed dated 16.4.2001 it is categorically mentioned that the house is being sold alongwith the tenancy of Sri Shambhu Nath, the Petitioner. Relevant extract of the sale deed has been appended as Annexure-2 to the writ petition. In paragraph 6 of the counter-affidavit it has been averred that the contents of paragraph 4 of the writ petition are matter of record.

Rebutting the aforesaid contention of counsel for the Petitioner, it has been submitted by counsel for the Respondent No. 3 that provisions of Section 13 read with Section 14 of ''U. P. Act No. XIII of 1972'' are not at all applicable to the tenants prior to 1976 and tenancy cannot be released.

In spite of time having been granted to the Petitioner on 25.2.2005 and further time granted on 17.3.2005 ; 6.5.2005 ; 26.7.2005 and 17.11.2005 no rejoinder-affidavit was filed. Ultimately the case was passed over on the request of counsel for the Petitioner on 22.12.2006 but no rejoinder-affidavit has been filed till date as such the averments made in the counter-affidavit are unrebutted.

In view of what has been discussed above, rejoinder-affidavit having not been filed by the Petitioner, the allegation of filing forged documents stands uncontroverted and are treated to be correct.

On consideration of arguments of counsel for the Petitioner with regard to Sections 11, 13, 15 and 21(1) of U. P. Act No. XIII of 1972, it is noted that U. P. (Temporary) Control of Rent and Eviction Act, 1947 was earlier enacted as temporary measure as is apparent from its title. It was thereafter replaced by U. P. Urban Buildings (Regulation of Lettings, Rent and Eviction) Act, 1972 in the interest of general public for regulating letting, rent and eviction of tenants from certain class of buildings situated in the urban areas and matters connected therewith.

Section 11 of U. P. Act No. XIII of 1972 provides that no person shall let any building except in pursuance of an order of allotment issued u/s 16 of U. P. Act No. XIII of 1972. Hence, no person can occupy a building except in pursuance of an order of allotment issued by the concerned Prescribed Authority and if he/she occupies the building or a part thereof otherwise in pursuance of a valid order of allotment, the accommodation has to be treated as vacant by the Rent Control Authorities which may be allotted u/s 16 of U. P. Act No. XIII of 1972.

The contention of counsel for the Petitioner that the Petitioner was a tenant in the building from much earlier, i.e., from 1967 is incorrect and is against the record.

It appears from record that the Petitioner has filed only three rent receipts dated 2.6.1968 for the months of May and June, 1968, dated 3.1.1968 for October to December, 1968 and dated 6.1.1970 for December, 1969 alleged to have been issued by the erstwhile landlord in support of his case that he was a tenant in the accommodation in dispute prior to 1972.

These rent receipts have been denied to have been issued by the erstwhile landlord on affidavit, hence the Petitioner cannot get any benefit of these rent receipts as has been held by the courts below. The finding of the Prescribed Authority, in this regard is as under:

It appears from record that the panchshala for 1978-83 shows that Sri Badrinath Murari was tenant of the accommodation in dispute and not the Petitioner-Sri Shambhu Dayal. Name of Sri Shambhu Dayal-Petitioner entered into the panchshala record for the period 1987-92 in place of Sri Badrinath Murari from which it appears that earlier Sri Badrinath Murari was the tenant and the Petitioner entered into possession of the aforesaid accommodation in 1987-92 without there being an order of allotment. The Prescribed Authority has further found and noted this fact that the rent receipts alleged to have been issued by the erstwhile landlord are quite new and have been recently issued and that they had not been issued on the dates mentioned in the receipts but at a subsequent stage. The Court was of the opinion that the Petitioner was deliberately installing the proceedings on the basis of aforesaid documents on one pretext or the other by moving application for transfer of the case etc. His counsel even did not argue the case. These findings are as under:

It may be noted here that the Petitioner had neither filed any rent receipt after 1969 nor had deposited rent under the tenders in the Court.

On perusal of sale deed dated 16.4.2001 appended as Annexure~2 to the writ petition, it is evident that it is not a sale deed.

From Annexure-4 to the writ petition, it appears that the Petitioner has stated that the landlord used to give him receipts as and when demanded by him. As stated earlier, three rent receipts relied upon by the Petitioner are dated 2.6.1968 for the months of May and June, 1968, dated 3.1.1968 for October to December, 1968 and dated 6.1.1970 for December, 1969. If landlord used to give rent receipts as and when demanded by him, one fails to understand as to why receipts filed by him are not for the whole years of 1968, 1969 and onwards.

It is apparent from the facts stated above that the Petitioner came in possession over the accommodation in dispute only in 1987 and was not a tenant prior to coming into force of U. P. Act No. XIII of 1972. As such, tenancy otherwise by an order of allotment will not have any binding effect in view of the decision in Geep Industrial Syndicate Ltd. v. Rent Control and Eviction Officer, 1982 ALJ 857 and Navin Chand Sharma v.V Ith A.D.J., AIR 1983 All 116. Reading Sections 11 and 13 of U. P. Act No. XIII of 1972 which impose the prohibition on letting without order of allotment, it can be safely concluded that Act No. XIII of 1972 restrains the landlord from giving the accommodation on rent without valid order of allotment and no one can occupy it without issuance of valid allotment order in his/her favour by the prescribed authority. It is settled law that any agreement offending a statute or a public policy is forbidden in law. It is void and invalid. Moreover, the erstwhile landlord has denied about issuance of the aforesaid rent receipts on which reliance has been placed by the Petitioner.

The decision in Geep Industrial Syndicate Ltd. (supra) has been considered in M/s. S.R.C. Bajpai and Co. v.VI Ith Addl. District Judge, Kanpur Nagar and others, 1994 (1) MARC 532, wherein it has been held that:

Section 11 of the Act imposes a prohibition or restriction against letting without an allotment order. Section 12 contemplates certain contingencies in which a landlord or tenant of a building would be deemed to have ceased to occupy it. Section 13 provides for restriction on occupation of building without allotment order. A conjoined reading of Section 11 imposes prohibition of letting without allotment order. Section 13 places restriction on occupation without an allotment or release. These two sections are required to be read together. Reading these two sections, it would appear that neither could a landlord let out a premises without an allotment order nor can anyone occupy it. These two provisions were enacted to undo the effect of a Full Bench decision of this Court in Udho Das v. Prem Prakash, 1963 ALJ 406.

The aforesaid decision was affirmed by the Full Bench in Nootan Kumar''s case (supra).

I do not find any force in the contention of counsel for the Petitioner that even if a person is in unauthorized occupation of a building, he can only be termed as ''unauthorized occupant'' but except declaring ''deemed vacancy'' he cannot be evicted under the provisions of U. P. Act No. XIII of 1972.

In my opinion, once a person is declared to be ''unauthorized occupant'' it reasonably followed that there is vacancy u/s 11 of the U. P. Act No. XIII of 1972 which has to be declared by the prescribed authority. In case the vacancy is declared, the prescribed authority will declare order of allotment in favour of a person in accordance with law who would be entitled to occupy the same but not an unauthorized occupant.

Needless to mention that U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is a Special Act hence it will prevail over any other normal procedure of law for eviction of an unauthorized occupant.

It is not the case of the Petitioner that the Respondent No. 3 who had become subsequent landlord by virtue of purchase of the house had put the Petitioner into possession of the accommodation in dispute without any valid order of allotment, as such, the provisions of Section 15 of the U. P. Act No. XIII of 1972 would not apply in this case. Subsequent purchaser may either apply for release of the accommodation/building for his personal use in accordance with law or may let the building to be allotted to a tenant where there is deemed vacancy. An application by the landlord for release of the accommodation may be in either of the circumstances, i.e., where there is regular sitting tenant in the building or in case an unauthorized occupant occupying the premises.

The reliance placed by counsel for the Petitioner in the case of Nootan Kumar Varma (supra), in fact, does not support the case of the Petitioner for the reasons that the present proceedings arises out of an application filed by the prospective allottee and that in paragraph 12 of the judgment in Nootan Kumar Varma (supra), it has been categorically held that a person who occupies the premises without a valid order of allotment shall be deemed to be an unauthorized occupant, whose status will be that of a trespasser. Admittedly, no valid order of allotment was ever passed in favour of the Petitioner-tenant. It is well-settled that extraordinary and equitable writ jurisdiction would not be exercised in favour of a person who has committed forgery and abused the process of law.

No illegality or infirmity could be pointed out in the impugned order passed by the court below warranting interference in the writ jurisdiction.

For the reasons stated above, the writ petition fails and is accordingly dismissed.

Costs:

So far as cost is concerned, Hon''ble the Apex Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), has held that:

So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points, which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the Judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates.

Thus, from the law laid down by the Hon''ble Apex Court in the aforesaid case of Salem Advocate Bar Association (supra), it is apparent that non-payment of cost is an exception for which special reasons have to be given by the Court and that in normal circumstances cost has to be awarded on the party according to the issue decided in favour of the party which were unnecessarily raised. The cost so imposed should be in accordance with rules and if the proceedings are unnecessarily protracted or adjournments have been sought it is upon the discretion of the Judge to impose exemplary cost taking also into account the circumstances etc. for the purpose of adjournment.

Following the ratio laid down in Salem Advocate Bar Association (supra), this Court in Civil Misc. Writ Petition No. 48752 of 2006, Nizamuddin v. Shakoor Ahmad after considering provisions of Rule 9 of Chapter XXII and Rule 11 of Chapter XXI of the High Court Rules, 1951 and provisions of Sections 34, 35A and 35B of the Code of CPC has held that while awarding interest on a party by non-payment of principal amount or any dues should also be considered by the Court and not only interest but penal interest may also be awarded.

Since it is a frivolous petition, the cost is to be deterrent and exemplary. In the facts and circumstances of the case, it is directed that apart from payment of arrears of rent, if any, the Petitioner will also pay cost of Rs. 10,000 (Rupees Ten Thousand) which shall be deposited by the Petitioner before District Judge, Kanpur Nagar within two months from today. The arrears of rent as well as the cost so deposited can be withdrawn by the Respondent-landlady without furnishing any security within two months from the date of deposit. In case the Petitioner fails to make payment of the aforesaid amount, the same shall be recoverable as arrears of land revenue.