Ram Swarup v. Rent Control and Eviction officers — 1982 DIGILAW 1282 (ALL)

JUDGMENT K.M. Dayal, J. - The present petition has been filed against the orders passed by the Rent Control and Eviction Officer and the IV Additional District and Sessions Judge, Kanpur in proceedings under Section 16(5) Section 19 of the U.P. Urban buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act. 2. The dispute is about shop facing road in premises No. 49/62 Bagla Building, Nayaganj, Kanpur. The proceedings on an application for allotment moved by respondent No. 3 alleging that the premises in dispute were in the tenancy of one Ganga Shanker Panday who had sublet the same to one Satya Narain Mehrotra and consequently there was a vacancy in law. He applied for allotment of the same in his favour. The premises alleged to have been inspected by the Senior Inspector on 2nd July, 1976. The report of the Senior Inspector in Annexure 'Ka A-1-1/7'. The report says that one Satya Narain Mehrotra was found in occupation of the premises, who disclosed that he had occupied the same for the last five or six months. The shop was in the tenancy of Ganga Shanker Pandey and he was paying rent of Rs. 250/- per month's to him. The building was attached buy the income-tax Department for realisation of the tax from the owners. On the aforesaid facts the Inspector reported that there appeared to be a vacancy and the shop may be declared vacant after information to the landlord. The same day there is an order passed at the bottom of the report declaring the vacancy. Thereafter the disputed premises were allotted in favour of respondent No. 3 by respondent No. 1 under Section 16(1)(a) of the Act. Proceedings for taking possession were taken and when the petitioner came to know about the allotment, he move an application 9th October, 1967 for review under Section 16(5) of the Act. A copy of that application is Annexure 'I' to the writ petition. He also adduced evidence before the Rent Control and Eviction Officer to show that Satya Narain Mehrotra had nothing to do with the building. The building was allotted in his favour on 4.10.1959 and he was in continuous occupation thereof and was paying Rs. 49/- per month as rent. He also adduced evidence before the Rent Control and Eviction Officer to show that Satya Narain Mehrotra had nothing to do with the building. The building was allotted in his favour on 4.10.1959 and he was in continuous occupation thereof and was paying Rs. 49/- per month as rent. He also produced the copies of the quinquinial assessments made by the Municipal Board and Nagar Mahapalika showing that in the quinquinial assessment the disputed shop was shown in the tenancy of Ganga Shanker Pandey during the assessment of years 1st April, 1958 to 31st March, 1963. The disputed shop was shown in outer portion on the ground floor, In the subsequent quinquinial from 1st April, 1963 to 1968 the same portion was shown in the tenancy of the petitioner. It was also pointed out that the rent was Rs. 49/- per month in the assessment 1963-68. Internal portion was show separately as beginning from tenantment No. 8 and another the shop No. 24 was in the tenancy of the petitioner at a rent of Rs. 18/75 P. per month. 3. The matter was heard by the Rent Control and Eviction Officer. He found that the telephone of the petitioner was in the accommodation. The rent receipts were filed by the petitioner showing payment of rent at the rate of Rs. 49/- as well Rs. 18/75 P. per month. The certified copy of the case register of 1959 was also produced showing the allotment of a portion in the disputed building in favour of the petitioner on 4.10.1959. He, however, held against the petitioner on the ground that the quinquinial assessment of 1973 to 1978 was not produced and according to him on that ground the petitioner's case could not be believed. It was further observed that there were three portions with the petitioner in the aforesaid building. The inner portion consisted of two portions separated by temporary partition. He ultimately held that the petitioner had ceased to occupy the accommodation and he had removed the firm from the front portion and shifted to inner portion. Consequently the vacancy was rightly declared. 4. The petitioner preferred a revision under Section 18(1) of the Act. The revisional authority affirmed the judgement of the Rent Control and Eviction Officer holding that the case of the petitioner was very doubtful. Consequently the vacancy was rightly declared. 4. The petitioner preferred a revision under Section 18(1) of the Act. The revisional authority affirmed the judgement of the Rent Control and Eviction Officer holding that the case of the petitioner was very doubtful. The learned counsel for the petitioner has filed this petition and seriously challenged the findings arrived at by the authorities below as false, perverse without any basis and imaginary. The learned Judge who heard the petition ordered the premises to be inspected by an Advocate Commissioner appointed by him, The Advocate Commissioner submitted his report which is on record. 5. The learned counsel for the petitioner urged that the orders of the Rent Control and Eviction Officer as well as of the Additional District Judge were perverse and based on extraneous considerations and were absolutely illegal. The learned counsel pointed out that the case before the Rent Control and Eviction Officer was whether the petitioner party was that the petitioner ever vacated the same. The learned counsel further pointed out that two sets of receipts were filed by him showing the rent as Rs. 49/- and Rs. 18/75 P. for two distinct tenements. 6. The municipal assessments of various years confirmed that the petitioner was a tenant in the aforesaid building of two portions. The front portion on the carrying a rent of Rs. 49/- and the inner portion carrying a rent of Rs. 18/75. The extension of telephone was one, electric connection for both the portions was also one. Even if there was a partition made by the petitioner in the inner portion for convenient use of the shop by placing almirah and plywood, that would not divide the tenanted portion into the different tenaments . About the infirmities in the revisional judgement he argued that he had pointed out to the judge that the Rent Control and Eviction Officer did not decide the controversy before him, but he decided the case under an impression as if the petitioner earlier occupied the premises and had later vacated it. Thus the judgment of the Rent Controller and Eviction Officer was wholly misconceived. The revisional authority mis-read the entries in the municipal assessments which recorded the outer and inner portions as separate tenements at different rent in the tenancy of the petitioner. Thus the judgment of the Rent Controller and Eviction Officer was wholly misconceived. The revisional authority mis-read the entries in the municipal assessments which recorded the outer and inner portions as separate tenements at different rent in the tenancy of the petitioner. Only one tenements in the inner portion as shown in the tenancy of the petitioner at a rent of Rs. 18/75 P. The internal portion was one tenament and any partition made by the petitioner could not covert the same into two tenements. The learned counsel further pointed out that the petitioner had connected the allotment dated 4.10.1959 with his tenancy about the outer portion by producing the municipal assessments and affidavits. 7. The learned counsel further pointed out the Additional District Judge wrongly held against the record that the petition did not produce any document to show how he came in possession. He has produced the municipal assessment, the register of allotment cases to show that he was allotted the portion in dispute and affidavit. Under these circumstances and learned counsel argued that the findings arrived at by both the authorities were perverse and no reasonable man could have come to these findings after perusing the relevant papers. 8. The learned counsel for the respondent did not go into the objections to the findings recorded by the authorities below. He raised three questions in reply. Firstly be argued that the petitioner had failed to prove that he was in lawful occupation of the disputed shop on the date of allotment and consequently application under Section 16(5) of the Act was not maintainable on his behalf. Secondly he argued that the petitioner already had two shops in the internal portion and it was never his case that he had a third shop. The last argument of the learned counsel for the respondent is that the findings however erroneous may be, being a finding of fact recorded by the authorities below could not be interfered with at this stage. 9. After hearing the learned counsel for the parties and going through the record find that both the authorities below have gone estray and have given findings on irrelevant considerations and against the record. The proceedings for allotment have not been given as a weapon in the hands of the authorities and unscrupulous litigant to evict lawful tenants from a building. After hearing the learned counsel for the parties and going through the record find that both the authorities below have gone estray and have given findings on irrelevant considerations and against the record. The proceedings for allotment have not been given as a weapon in the hands of the authorities and unscrupulous litigant to evict lawful tenants from a building. It is apparent from the various assessments that the petitioner had two portion in the building No. 49/62. Inner portion was described separately at a rent of Rs. 18/75. The outer portion was separately shown in the assessment at serial No. 7. The outer portion was recorded in the tenancy of Ganga Shanker Pandey in the assessment of 1958 to 1963. The allotment order in favour of the petitioner was of 4th of October, 1959. The possession of the premises appears to have been delivered on 15th October, 1959. The record of his possession as a tenant of Rs. 49/- per month for the first time came into being in the assessment of 1963 to 1968. There is no entry of any rent at the rate of Rs. 49/- per month in respect of any portion in the name of the petitioner in the earlier quinquinial assessment. The quinquinial assessment under the Municipalities Act as well as Nagar Mahapalika Adhiniyam is made every five year. The assessment for the year 1958 to 1963 must have been prepared prior to 1st April, 1958. In the said assessment, Ganga Shanker Pandey is sown as a tenant in the outer portion. In the subsequent assessment which was made for year 1963 to 1968 the name of Ganga Shanker Pandey is not there but the name of the petitioner along with Rs. 49/- per month as rent was mentioned in his place. No, reasonable man with ordinary intelligence who examines the document mentioned above can come to a conclusion that it was the inner portion which carried two rents Rs. 49/- and 18/75, on that the petitioner was tenant of two tenements in the inner portion. Further both the authorities have give finding that the petitioner has ceased to occupy an absolutely no evidence on record. It was not bodies case. No party has adduced any evidence to show the petitioner vacated the portion in dispute at any point of time. Further both the authorities have give finding that the petitioner has ceased to occupy an absolutely no evidence on record. It was not bodies case. No party has adduced any evidence to show the petitioner vacated the portion in dispute at any point of time. The allotment in favour of the petitioner was in lawful occupation of the disputed premises as an allottee. The rent receipts which corroborated the municipal assessment showing the rent at the rate of Rs. 49/- per month for the outer shop undoubtedly that the petitioner took the accommodation and the rent receipts pertained to this very portion and no other portion. I am pained to say that senior person like IVth Additional District Judge, Kanpur did not care to see the documents and ignored the relevant entries pointed out before him. He should have cared to look to the entries before referring to and relying upon the same. 10. The Commissioner appointed by third court found that there was really no partition wall in the inner portion but the inner portion was divided by the tenant himself by placing two almirahs and a small wooden partition. The main controversy is whether the petitioner had two tenaments in the inner portion or one. If there is only one tenancy for the inner portion the tenament will remain one. 11. The petitioner having proved beyond any reasonable doubt that he had been allotted the outer portion and have been in its occupation, he certainly was a lawful occupation. Even if his occupation under the allotment order was doubted, on 15th July, 1972 when the Act came force, he was in possession with the consent of the landlord and consequently his occupation even if illegal was validated. The petitioners affidavit about consent of the landlord and payment of rent and receipts issued to him was unrebutted. 12. The learned counsel for the respondent argued that there was no proof of payment of rent to the landlord. No rent receipt had been referred to by the Rent Control and Eviction Officer. There was also statement of the official receiver who was realising the rent after 1974. He stated that he had demanded the rent of that portion from the petitioner. No rent receipt had been referred to by the Rent Control and Eviction Officer. There was also statement of the official receiver who was realising the rent after 1974. He stated that he had demanded the rent of that portion from the petitioner. That would only show that the petitioner was accepted as a tenant and his occupation on 15th July,1976 conferred his with fresh rights under the amended section 14 of the Act. Thus the objection of the counsel for the respondent that the petitioner was not in lawful occupation have no legs to stand. The question whether the petitioner was tenant of one shop or two shops in the inner portion have also been clarified by the Commissioner who went on the spot and made an inspection. The Commissioner has pointed out in his report that there were four pillers in the inner shop. The portion which separated by placing two almirahs did not have any other opening. The door D-3 was permanently closed from the outside. There appears to latrine and bathroom constructed out side. That portion could not have been a separate portion. From the plan submitted by the Commissioner it is apparent that it is one portion which was divided into two. That finds support from the municipal assessment. The finding of the court below that the inner portion was divided into two portions by a portion does not make any difference. A tenant has a right to use the accommodation in any manner. If the tenant divide the tenament for use of Vyaparis and Gaddi that would not make it two tenaments. Both the Courts below acted illegally treating the two portions as in separate tenancies. There is no force in the second argument of the learned counsel for the second argument of the learned counsel for the respondent. 13. The last argument of the learned counsel was that the finding of fact was binding on this court. So far as this court is concerned, it is true that the findings of the fact is ordinarily binding in writ jurisdiction. But when it is found that the authorities below mis-stated the facts mis-read the documents, ignored the relevant evidence and based its findings on irrelevant matter such a finding cannot be binding on this court. It has been held in M/s Hindi Trading Co. But when it is found that the authorities below mis-stated the facts mis-read the documents, ignored the relevant evidence and based its findings on irrelevant matter such a finding cannot be binding on this court. It has been held in M/s Hindi Trading Co. v. Union of India and another, AIR 1970 Supreme Court 185 that the finding of fact which could not have been arrived at by any reasonable person on the material on record is not binding on this court. From the material that has been produced by the parties before me I am satisfied that no reasonable man exercising ordinary prudence could have come to a conclusion that has been arrived at by the authorities below. 14. In 1970 Allahabad Rent Cases p. 235 Gur Prasad IVth Additional District Judge it has been held that where the finding recorded by Authorities below were perverse and unreasonable, interference by this court was justified. 15. Under the circumstances and form the material produced it is apparent that the respondent No. 3 in collusion with some others tried to purpose the building by mis-representation and mis statement of facts and records. I am sorry to observe that the authorities below have helped him in the same. Tenancy is a valuable Property right and cannot be jeopardised in the manner it has been done by the authorities below. After perusing the entire record as discussed above there can be no room for doubt that the petitioner had neither vacated nor ceased to occupy the accommodation as held by the authorities below. It was not even the case of any party. 16. In the result the present petition is allowed and the allotment order dated 26/27th September 1976 and the order dated 21st July 1978 rejecting the application under Section 16(5) of the act and order dated 22nd November, 1979 passed under Section 19 of the act are all quashed. The petitioner will be entitled to his costs from respondent No. 3.