Sita Ram vs Gopal and Another

Rakesh Tiwari, J.—Heard Sri Nitin Kumar Agrawal for Petitioner, Sri A.N. Sinha holding brief of Sri J. P. Singh, counsel for caveator Respondent No. 2 and perused the record.

The Petitioner claims himself to be the tenant of house in dispute No. 2/99, Noniyar Tola, Nawabganj Kanpur Nagar on monthly rent of Rs. 50/-. It is claimed by him that he entered in the premises as tenant of one Chhedi Lal, who was owner of the building, to whom rent was paid by him regularly month to month. It is stated that after death of Sri Chhedi Lal, his legal heirs executed a sale-deed dated 30.8.2005 in favour of Sri R.K. Gupta son of Sri Shyam Lal Gupta, resident of 61/213, Canal Road, Kanpur Nagar. On coming to know about sale of the house, the Petitioner after sometime tried to pay rent to the subsequent purchaser-Respondent No. 2 Sri R.K. Gupta, who it is stated did not accept it, hence the Petitioner sent the same through Money Order to the subsequent purchaser/new landlord, who denied to accept the Money Order too. According to the Petitioner, under these compelling circumstances, he deposited the rent u/s 30 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) before Civil Judge (JD), Kanpur Nagar in case No. 53/70 of 2007, Sita Ram v. Rakesh Gupta.

Counsel for the Petitioner has submitted that in the meantime Respondent No. 1 Gopal son of Sri Om Prakash, resident of 133/360, Kidwai Nagar, Kanpur moved an application before the Rent Control and Eviction Officer/A.CM. VIth, Kanpur Nagar u/s 12 of the Act for allotment of the accommodation in dispute to him, which was registered as case No. 38 of 2009.

On receipt of the application aforesaid, the Rent Control and Eviction Officer/A.C.M. VI, Kanpur Nagar vide his order dated 31.10.2009, directed Rent Control Inspector for making an enquiry under Rule 8(2) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. After inspection, the Rent Control Inspector submitted his report dated 14.12.2009 to the effect that Petitioner was found living in the accommodation. Affidavits were filed by the tenant Petitioner as well as landlord in support of their respective claims. The Petitioner on the one hand, claimed that he was residing in the accommodation since 1985. The landlord on the other claimed that Petitioner had entered into the accommodation with effect from 1.6.1999 as was informed to him by the previous landlord. The parties filed documentary evidence and also adduced oral evidence in support of their contensions.

The Rent Control and Eviction Officer/A.C.M., Kanpur Nagar on the basis of materials on record and evidence produced by the parties, by the impugned order dated 4.1.2011 declared vacancy holding that the Petitioner had not been able to prove his case and had no right as tenant but release order for the accommodation has not been passed so far.

It is at this stage that Petitioner has filed this writ petition challenging the aforesaid order dated 4.1.2011 declaring vacancy of the premises in dispute. Counsel for the Petitioner has submitted that he has no other alternative remedy as the order declaring vacancy is not final, hence no revision lies against the said order.

Counsel for the Petitioner has on merits argued that application by a third person for release of the accommodation in dispute is not maintainable. In this regard, he has relied upon two judgments of this Court, firstly in Hazi Naseem Ahmad v. R.C. & E.O./Additional District Magistrate (Civil Supply), Varanasi and Ors. 2009 (5) ADJ 263, wherein the Court in paragraph Nos. 8 and 9 considered the question of declaring vacancy of the accommodation under occupancy of unauthorised occupant and held that even if possession of the tenant of disputed accommodation is an unauthorised one, vacancy cannot be declared at the instance of the landlord for allotment after expiry of period of 12 years from the date of commencement of the unauthorised occupancy. He has then relied upon the decision rendered in Smt. Jamuna Devi v. District Judge, Kanpur Nagar and Ors. 2009 (10) ADJ 607, wherein the Court considered the order declaring vacancy and release of premises in favour of the landlord under Sections 12(1) and 16(2) of the Act. After noting that the tenants were occupant of the disputed premises for more than 20 years and erstwhile landlord never took any action nor sent any notice for initiating any action against the Petitioner, the action of the builders trying to grab the property and evict the Petitioner by unlawful means, cannot be sustained. The Court held that release order was liable to be quashed. While quashing the order, the Court also observed that Rent Control and Eviction Officer had failed to consider the real question as to bar of proceedings by subsequent owner as in past the erstwhile landlord had not taken any action against the tenant who was paying rent regularly to the landlord and that the erstwhile landlord had no grievance against the tenant in that case.

Per contra, Sri A.N. Sinha appearing for the Respondent has argued that the Court below has recorded a finding of fact that Petitioner had become an illegal and unauthorised occupant in January 2000 in the accommodation in dispute and that on the basis of record of Nagar Nigam, Kanpur Nagar, it is proved that Petitioner was not mentioned as tenant in Panchshala register for the years 1987 to 1992.

Sri Sinha has also relied upon a Division Bench decision of this Court in Geep Industrial Syndicate Ltd., Allahabad v. The Rent Control & Eviction Officer, Allahabad and Ors. 1982 (1) ARC 585 and submitted that in paragraph No. 20 of the said judgment, it has been held that District Magistrate has power u/s 16(1) of the Act for ignoring the contract arrived at between a landlord and the tenant and treat the building as vacant for allotment to other party after hearing, in the case where the building had been let out without any allotment order. Paragraph No. 20 of the aforesaid judgment reads thus:

In Murlidhar Agrawal v. State of U.P. (supra), the Supreme Court found that since there was no prohibition in U.P. Act No. III of 1947 for letting or occupying, the contract arrived at between the two would be binding. The lacuna has now been removed. In Act XIII of 1972, there is a prohibition on the right of any person to let out which will impose a corresponding obligation not to occupy the same. In the absence of a provision like Section 11 of the present Act, the Supreme Court held that the contract of letting in that case was binding between the landlord and the tenant. However, what is material to consider is that even in that case the Supreme Court found that such a contract was not binding on the District Magistrate and he could treat the building as vacant and evict therefrom the tenant. Section 11 has made the position crystal clear. The District Magistrate can ignore the contract arrived at between a landlord and the tenant and pass an appropriate order for allotment u/s 16. What he may be required to do is to afford an opportunity of hearing before evicting the tenant.

After hearing learned Counsel for the parties, it appears that Rent Control and Eviction Officer/A.C.M., Kanpur Nagar has come to a definite conclusion that documentary evidence submitted by the Petitioner was not reliable and he has failed to prove from his oral evidence that he was a lawful tenant of the accommodation in dispute and was residing therein with consent of the landlord according to provisions of the Act. The submission of the counsel for Petitioner that Rent Control and Eviction Officer has not considered the report of the Rent Control Inspector, is not correct as from the impugned judgment and order it is evident that Court below had considered case of the Petitioner as well as report of the Rent Control Inspector. Relevant extract of the impugned order in this regard is thus:

Oral evidence and documentary evidence filed by the Respondent landlord was found to be reliable by the Court below.

At this stage, provisions of Section 2-A of the Act may be taken note of which is a special provision for short term licence. For ready reference, Section 2-A of the Act is quoted below:

2-A. Special provisions for short term licence: (1) Notwithstanding anything contained in this Act, a person occupying a building as owner or as tenant or in any other capacity (hereinafter in this Section referred as licensor may permit any other person (hereinafter in this Section referred to as (licensee) to occupy for purely temporary residential accommodation for a period not exceeding three months without any order of allotment u/s 16.

Thus, the Petitioner who was given short term licence by the then owner, could not have occupied the accommodation in dispute after December 1999 even if the procedure/provision of Section 2-A have been followed which admittedly have not been followed. Even assuming that the Petitioner was a lawful licensee u/s 2-A, he became an unauthorised occupant after expiry of period mentioned therein.

The Court below on the basis of the evidence has found that the Petitioner has occupied the premises in dispute on 1.6.1999 and therefore in view of this finding of fact recorded by the Court below, the period of 12 years having not elapsed till date of filing of the application, the decisions cited by the counsel for Petitioner, would not be applicable to the facts and circumstances of the present case. Further, in those cases, release application was filed by the landlord whereas in the instant case, it has not been filed by Respondent No. 2 i.e. the landlord but by Respondent No. 1 on the basis of deemed vacancy on the ground that Petitioner is an unauthorised occupant and the premises in dispute had become vacant when the erstwhile landlord had vacated it.

For all the reasons stated above, there is no illegality or infirmity in the order impugned declaring vacancy. The writ petition is accordingly dismissed. No order as to costs.