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Allahabad High Court · body

2000 DIGILAW 444 (ALL)

SHEEL KUMAR MISHRA v. USHA RANI MISHRA

2000-03-16

SUDHIR NARAIN

body2000
SUDHIR NARAIN, J. ( 1 ) THE core question in the petition is as to whether the disputed accommodation is vacant or not. ( 2 ) BRIEFLY stated, the facts are that one Ram Chandra Mishra was the tenant of a portion of the disputed house No. 3a, 274, Azad Nagar, Kanpur. He was selected for the post of store and purchase officer in the National Dairy Research Institute, Karnal. in the year 1964. He shifted to karnal with his entire family from the disputed house. After him, it was occupied by his elder brother, R. A. Mishra. In the year 1965 Sri R. A. Mtshra died and after his death the petitioner, his son. continued to occupy the same along with his younger brother, Sunil Kumar Mishra. ( 3 ) THE landlords of the house in question sold it on 10. 8. 1990 by executing three separate sale deeds, one in favour of Smt. Usha Rani Mishra. the wife of the husband of his younger brother. Sunil Kumar Mishra : the second to Rajiv Prakash. respondent No. 2 and the third to Mrs. Neeta awasthi. The dispute in the present case relates to the portion which was sold to respondent No. 2. After execution of the sale deed by the previous landlord, one Sri P. S. Chauhan filed application for allotment on 26,9. 1990 before the Rent Control and Eviction Officer, alleging that the house in question was likely to fall vacant. The Rent Control Inspector submitted report on 7. 1. 1991 that the petitioner and hts brother Sunil Kumar Mishra were found in possession. It was reported that the petitioner and the family of his brother were residing in the disputed house for the last 25 years and there was no vacancy. The petitioner filed written statement before the rent Control and Eviction Officer on May 7, 1991, alleging that he was residing in the disputed house as a tenant with the consent of the landlord since the year 1964-65. Rajiv Prakash, the owner of the house, filed objection that the accommodation in question be declared as vacant as the petitioner has no right to continue to occupy the disputed house. The Rent Control and eviction Officer by his order dated 24. 7. 1991 declared the disputed accommodation as vacant and, on 6. 8. 1991, he passed order releasing the disputed accommodation in favour of respondent no. The Rent Control and eviction Officer by his order dated 24. 7. 1991 declared the disputed accommodation as vacant and, on 6. 8. 1991, he passed order releasing the disputed accommodation in favour of respondent no. 2 on an application filed for release under Section 16 (1) (b) of the U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act. 1972. (in short the act ). ( 4 ) ON 21. 8. 1991, the petitioner filed application to recall the order dated 24. 7. 1991 whereby the vacancy was declared and an order dated 6. 8. 1991 releasing the disputed accommodation in favour of respondent No, 2 was passed. He also filed a revision against these orders under section 18 of the Act. The revision of the petitioner was dismissed on 24. 8. 1991 on the ground that the revision does not lay against the order declaring vacancy. The petitioner then filed application under Section 16 (5) of the Act on 17. 1. 1992. This application was rejected on 19. 2. 1992. The petitioner filed a revision against this order. The revision has been dismissed on 25. 2. 1992. The petitioner has filed Civil Miscellaneous Writ Petition No. 7180 Of 1992 against the order dated 19. 2. 1992 and 25. 2. 1992. ( 5 ) THE core question is whether the petitioner has acquired any right of tenancy under the law. Admittedly, his uncle Ram Chandra Mishra was the tenant of the disputed accommodation. He was selected for a Job at Karnal and he shifted there in the year 1964 and, thereafter, the father of the petitioner and his family including the petitioner continued to live in this house. The landlords of the house never objected that the petitioners were in unauthorised possession after ram Chandra Mishra left to Karnal on transfer. The dispute arose only after the previous landlords executed the sale deed on 10. 8. 1990. The Rent Control and Eviction Officer held that as father of the petitioner, Shri R. A. Mishra, was brother of Ram Chandra Mishra, the tenant, he could not be held as member of the family of the outgoing tenant and the accommodation in question shall be treated as vacant under the law. The contention of the petitioner that he was entitled to the benefit of Section 14 of the Act was not occupied. The contention of the petitioner that he was entitled to the benefit of Section 14 of the Act was not occupied. Section 14 provides that the tenant in occupation of the building with the consent of the landlord immediately before the commencement of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction)Amendment Act, 1976, not being a person against whom any suit or proceedings for eviction is pending before any Court or authority on the date of such commencement, shall be deemed to be authorised licencee or tenant of such building. This provision contemplates that. firstly, the occupant should be accepted as licencee or a tenant by the landlord ; secondly, he is residing with his consent and, thirdly, his occupation is prior to commencement of the aforesaid amending Act of 1976, i. e. , 5th duly. 1976. The petitioner was admittedly residing prior to the year 1976. ( 6 ) THE next question is whether he had the consent of the landlord to continue to occupy the premises as a tenant or licencee. The consent may be express or implied. It was not necessary that the consent must be in writing. The petitioner had produced ration-card, electric bill, voters list from 1967 to 1990. letters written by Sri Ram Chandra Mishra and the payment of rent made to the previous landlord in support of his version. ( 7 ) IN Rom Chandra Gupta v. IInd ADJ, Allahabad and others. 1979 ARC 222, wherein the daughter was allotted the premises but after her marriage, she left the house and father continued to reside therein, it was held that the father shall be deemed to continue with the consent of landlord and the accommodation could not be treated as vacant under the law. The fact that the rent receipts were issued in the name of his daughter would not show that the occupant was not living in the house with the consent of the landlord. She was allotted the premises at the time when she was unmarried and after her remarriage, she left the house but the same was occupied by her parents. In Meera Paul and others v. IInd ADJ. Faizabad and others. 1986 (1) ARC 132. the facts were that after the tenant was transferred. It was occupied by tenants married sister. She was allotted the premises at the time when she was unmarried and after her remarriage, she left the house but the same was occupied by her parents. In Meera Paul and others v. IInd ADJ. Faizabad and others. 1986 (1) ARC 132. the facts were that after the tenant was transferred. It was occupied by tenants married sister. The objection taken was that she could not be treated as a family member and the accommodation should be deemed vacant. The Court repelled the contention and held that she was residing in the premises within the knowledge of the landlady and as she never objected to her occupation, she was entitled to the benefit of Section 14 of the Act. In Ram Palat Singh v. Kalpa Nath Rai, 1984 12) ARC 61, the Court held that the mere fact that the occupants possession was without allotment or was obtained without the written consent of the landlord was not enough for denying the benefit of Section 14 of the Act. The view of the Rent Control and Eviction Officer that as there was neither written consent nor any receipt in the name of the petitioner, the petitioner was not entitled to the benefit of Section 14 of the Act was held erroneous. Section 14 of the Act does not require that the consent of the landlord must be in writing before regularisation of the tenancy can be done under the said provision. The consent of the landlord may be express or implied. ( 8 ) THE learned counsel for the respondent contended that the mere knowledge of the landlord of the possession of a person in occupation of the disputed building itself cannot be taken as his consent to occupy the premises as a tenant. He has placed reliance upon the decision in Ram singh v. Banwari Lal and others, 1982 (1) ARC 201, where the Court on examining facts held that there was no evidence on record showing that the occupant was treated as a tenant or that his possession was with the consent of the landlord and in absence of such evidence, he was not entitled to the benefit of Section 14 of the Act. In Girja Shanker and another v. Hriday Ranjan chakraborty, 1988 (2) ARC 501. an Aushdhalaya was the tenant. In Girja Shanker and another v. Hriday Ranjan chakraborty, 1988 (2) ARC 501. an Aushdhalaya was the tenant. One Hriday Ranjan chakraborty claimed that he was paying rent to the landlord and he should be treated as the tenant. It was found that he was an employee of the tenant and, therefore, was not entitled to the benefit of Section 14 of the Act. The Supreme Court made the following observation : "the tenant of the premises in question has long left. An employee without the consent though, perhaps, with knowledge of the landlord was occupying the premises, but in such circumstances it cannot be held as the High Court has done that there was no deemed vacancy. " in the facts and circumstances of the aforesaid case, it was held that even though the occupant was living within the knowledge of the landlord, he was not entitled to the benefit of Section 14 of the Act. In Jaspal Singh v. Addl District Judge, Varanasi and others, 1985 (1) ARC I, it was held that if a person was occupying the premises prior to the U. P. Act No. 28 of 1976, he cannot claim the benefit of Section 14 of the Act if he was not residing with the consent of the landlord and the proceedings against such occupant was pending against him on the date of the enforcement of the Act. ( 9 ) IT is true that mere knowledge of the landlord of occupation of the building by a person other than the tenant to whom it was let out, in itself is not sufficient to show that he had given consent to him to continue to occupy it as tenant, as according to him. his occupation may be as a relative, guest or employee of the tenant. He may not have any objection to the occupation of such person in the building in that capacity. The position will be. however, different when the tenant has vacated the accommodation long ago and the landlord accepts rent from such occupant, though in the name of tenant, who no longer is occupying the building. The Court can draw an inference of implied consent as a tenant or the accommodation tn question. In Rajendra kumar and others v. District Judge. Varanasi and another, 1984 ALJ 99. The Court can draw an inference of implied consent as a tenant or the accommodation tn question. In Rajendra kumar and others v. District Judge. Varanasi and another, 1984 ALJ 99. where the tenant had sold his ginning and flour machine and thereafter transferred possession of shop as well to another person and the landlord continued to accept the rent from such person. though the receipt was issued in the name of the original tenant, it was held that there will be an implied consent of the landlord to continue as a tenant. Such person was held to be entitled to the benefit of Section 14 of the Act. It was observed that : "petitioner has been found to be in possession since 1965 to the knowledge of opposite party. Length of possession and passage of time are circumstances which strongly (sic) in favour of petitioner. Added to this is the finding that opposite party had knowledge of it. Therefore, she should be deemed to have consented (sic) in possession of petitioner. " ( 10 ) LANDLORD respondent No. 2 had filed objection and it was admitted to him that Ram Chandra misra. the tenant had shifted to Karnal on the transfer and permitted the family of Ram Asrey mishra to live as a relative along with the family in the year 1965. Paragraph 3 of his objection dated 16. 3. 1991 reads as under : That Sri Ram Chandra Misra became the tenant of the disputed portion on or about 1947 or 1948 on account of relationship. Sri Ram Chandra Misra allowed Sri Ram Asrey Misra to live as a relation along with his family in the year 1965. As the services of Sri Ram Chandra Misra were transferred to Karnal. although he joined his duties at Karnal as store purchasing officer but his family continued to occupy the disputed portion. " ( 11 ) IT is not the case of the respondent that Ram Chandra Misra lived in the disputed house while he continued in service and his children were receiving education at Kanpur. This matter is to be examined by the Rent Control and Eviction Officer. ( 12 ) THE learned counsel for the respondent further contended that there were six landlords who have sold the property to respondent No. 2 on the 10th August, 1990. This matter is to be examined by the Rent Control and Eviction Officer. ( 12 ) THE learned counsel for the respondent further contended that there were six landlords who have sold the property to respondent No. 2 on the 10th August, 1990. and the consent of all the co-landlords were required before any benefit under Section 14 of the Act can be given. The petitioner had filed the objection. It was not his case that some of the co-landlords had not given the consent. It depends upon the fact of each case as to whether any of the landlords had an objection in regard to the occupation of the occupant of the premises in question. ( 13 ) THE contention of the petitioner is that the consent of the landlord shall be apparent as while executing the sale deed on 10. 8. 1990 Usha Rani, wife of Sunil Kumar Mishra, brother of the petitioner, was referred as the tenant in the sale deed. It was nowhere the case of any of the parties that she was inducted as a tenant in the year 1978 when she was married to Sunil Kumar mishra or there was any allotment in her favour. The statement in the sale deed shows that she was treated as a tenant being a family member of R. A. Mishra, father of the petitioner. ( 14 ) THE learned counsel for the petitioner urged that the petitioner had not challenged the order of vacancy by filing a writ petition. He had filed revision against the said order and that revision having been dismissed, he has no right to challenge the said order in this writ petition. This contention cannot be accepted. The petitioner has filed a revision against the order of release on the ground that the disputed accommodation should not be treated as deemed vacant. The revision was. however, dismissed on the ground that it was not maintainable against the order of vacancy. He now cannot be deprived from taking the plea that the disputed accommodation should not be treated as vacant. ( 15 ) IN view of the above, the writ petition is allowed. The order dated 24. 7. 1991 declaring the vacancy is hereby quashed. The Rent Control and Eviction Officer shall consider the matter afresh keeping in view the observation made above and in accordance with law. ( 15 ) IN view of the above, the writ petition is allowed. The order dated 24. 7. 1991 declaring the vacancy is hereby quashed. The Rent Control and Eviction Officer shall consider the matter afresh keeping in view the observation made above and in accordance with law. ( 16 ) THE Rent Control and Eviction Officer had passed the order of release after the accommodation was treated as vacant. In case it is finally held that there was no vacancy, the order of release passed on 6. 8. 1991 shall be treated as quashed, but if it is held that there was vacancy, the release order passed in favour of respondent No. 2 shall remain operative. ( 17 ) IN view of the facts and circumstances of the case the parties shall bear their own costs. .