Sona Devi v. Prescribed Authority — 1987 DIGILAW 1075 (ALL)

JUDGMENT : R.P. Singh, J. This writ petition is directed against the order passed by the Prescribed Authority, Respondent No. 1, dated 19-1-1987 and further praying for a mandamus directing Respondent No. 1 not to evict the petitioners in pursuance of the release order, dated 21-2-1986. 2. The facts of this case are that Respondent No. 2 filed an application for the release of the accommodation in dispute, u/s 21(1)(a) of U.P. Act No. XIII of 1972 against Respondents No. 3 to 6 before the Prescribed Authority, Allahabad which was allowed by him on 21-2-1986 and Respondents No. 3 to 6 were allowed time till 31-5-1986 to vacate and hand over vacant possession of the accommodation to Respondent No. 2. The petitioners claiming themselves to be tenants of the accommodation in dispute and who were not impleaded in the release application, filed an application for setting aside the order of release, dated 21-2-1986 passed by the Prescribed Authority and prayed for permitting the petitioner to contest the case after being impleaded as parties in the case. The Prescribed Authority, after hearing learned Counsel for the parties, vide his order, dated 19-1-1987 rejected the application holding that the petitioners have not proved that they were the tenants of the accommodation in dispute or that they were in possession of the accommodation with the consent of the landlord and in absence of any rent receipt showing the payment of rent, the petitioners have not been able to substantiate their claim to be in possession as tenants of the accommodation in dispute and hence rejected the application. Feeling aggrieved, the petitioners have filed this writ petition before this Court. 3. The main contention of the learned Counsel for the petitioners is that the petitioners are coming down in possession of the accommodation in dispute since long and with the knowledge and consent of the landlord and are proved to be the tenants of the accommodation in dispute. Their case is that the order of release was obtained by mis-representation and fraudulently by Respondent No. 2 in collusion with Respondents 3 to 6. It was further contended that considering the material facts that the petitioners have been continuing in possession since long and in any case the petitioners being in possession with the consent of the. landlord, they are entitled to the benefit of Section 14 of U.P. Act No. XIII of 1972. 4. It was further contended that considering the material facts that the petitioners have been continuing in possession since long and in any case the petitioners being in possession with the consent of the. landlord, they are entitled to the benefit of Section 14 of U.P. Act No. XIII of 1972. 4. Learned Counsel for the Respondent-landlord on the other hand contends that the release order was validly passed in his favour against the tenants and that the petitioners are not the tenants nor are they continuing in possession with the consent of the landlord and hence their application for recalling the order of release has rightly been rejected by the Prescribed Authority after recording a finding on perusal of the evidence on record that the petitioners have not been able to prove that they are tenants of the accommodation in dispute nor are they in possession with the consent of the landlord. 5. I have heard learned Counsel for the parties and have perused the impugned order passed by the Prescribed Authority. The Prescribed Authority, on a perusal of the evidence on record, has held that the petitioners in support of their case , of tenancy have not been able to produce any allotment order or any rent receipt. Moreover, there is no contract of tenancy nor there is anything on the record to show that the petitioners are in possession with the consent of the landlord both present and past and hence rightly dismissed the application moved by the petitioners. The Prescribed Authority has held that there is nothing on the record to show that the ancestor of the petitioner Bankey Lal entered the accommodation in dispute on the basis of any allotment order or with the consent of landlord. The petitioners are claiming to be continuing in possession as tenants since long and still curiously enough has not been able to produce a single rent receipt in support of their claim of tenancy. In order to claim the benefit of Section 14 of Act No. XIII of 1972, it is necessary for the petitioners to prove that they were in possession with the consent of the landlord immediately before the commencement of the U.P. Urban Buildings ( Reg. of Letting, Rent and Eviction) (Amendment) Act, 1976. In order to claim the benefit of Section 14 of Act No. XIII of 1972, it is necessary for the petitioners to prove that they were in possession with the consent of the landlord immediately before the commencement of the U.P. Urban Buildings ( Reg. of Letting, Rent and Eviction) (Amendment) Act, 1976. In the present case, in view of the clear finding recorded by the Prescribed Authority that the petitioners have not been able to prove that they are in possession with the consent of the landlord either present or past, the petitioners cannot claim any benefit u/s 14 of the Act. 6. Learned Counsel for the petitioners placed reliance on the case reported in 1979 ARC 220 Ram Chandra Gupta v. IV Addl. District Judge, Allahabad in support of his contention that the consent of the landlord can also be implied consent. In that case, it was held that the father in law of the tenant i.e. Jagannath Bharti had been in possession of the premises since 1969 and the landlord sent a letter to Jagannath Bharti calling upon him to pay rent of the house in dispute which letter had. been interpreted by both the courts below which indicated that Jagannath Bharti was occupying the house with the consent of the landlord and hence, in the circumstances of that case, the benefit of Section 14 of the Act No. XIII of 1972 was given. However in the present case, there is nothing to indicate any consent of the landlord to the occupation of the petitioners so as to entitle them to the benefit of Section 14 of the Act. Another case relied upon by the learned Counsel for the petitioners is reported in 1982 ARC 201, Ram Singh v. Banwari Lal. In that case, shop was in the tenancy of 'A', 'B' who was not a member of 'A's family was paying the rent of the shop since 1966 but there was no evidence on the record showing that ' B ' was treated as a tenant or that his possession was with the consent of the landlord. It was held in that case that in absence of any such evidence, ' B ' cannot claim the benefit of Section 14 because payment of rent by him will be treated for and on behalf of tenant ' A '. It was held in that case that in absence of any such evidence, ' B ' cannot claim the benefit of Section 14 because payment of rent by him will be treated for and on behalf of tenant ' A '. This case also lends no support to the petitioners' case in absence of any finding by the Prescribed Authority that the petitioners were in occupation of the accommodation with the consent of the landlord, 7. In view of the clear finding recorded by the Prescribed Authority that the petitioners have not been able to produce any evidence in support of their tenancy and further that they have not been able to show that they were in occupation of the accommodation in dispute with the consent of the landlord, the Prescribed Authority has rightly rejected the application of the petitioners, vide his order, dated 19-1-1987. 8. In view of the discussion above, there are no merits in this writ petition which is accordingly dismissed. However, the parties shall bear their own costs.