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2010 DIGILAW 3683 (ALL)

Radha Krishna v. Raj Kumar Gupta

2010-12-09

SHASHI KANT GUPTA

body2010
JUDGMENT : Shashi Kant Gupta, J. – This writ petition is directed against the order dated 16.9.2008 and 19.6.2008 passed by the Rent Control and Eviction Officer (In short 'RCEO') and order dated 26.7.2010 passed by the Additional District Judge Court No. 13, Kanpur Nagar in Rent Revision No. 3 of 2009 whereby the premises in dispute has been declared vacant and released in favour of the respondents-landlords. 2. The brief facts of the case are as follows; (i) The dispute relates to the ground floor accommodation of the Premises No. 110/195, Ram Krishan Nagar, Kanpur Nagar (In short 'Premises No. 110/195) which is a double storey house. The ground floor of the premises comprises of two rooms, store, kitchen, Angan, one joint Veranda and latrine. The Premises No. 110/195 was purchased by the respondents in the year 2001. The respondents moved an application under Section 12 read with Section 16 (1)(b) of the UP Act No. 13 of 1972 (In short 'the Act') before the prescribed authority which was registered as Case No. 152 of 2008 wherein it was alleged that the petitioner No. 1, Radha Kirshna who was the tenant @ Rs. 65/- per month of the disputed premises has shifted to a vacant House No. 271A, Gujaini, Kanpur Nagar. It was further alleged by the respondent-landlords that despite the repeated demands, the petitioner No. 1 has not paid any rent since last five years and is keeping the Premises No. 110/195 locked after removing all his effects therefrom, as such, the accommodation in question has fallen vacant within the meaning of section 12 of the Act and was prayed to release the disputed premises in their favour for their personal need. In pursuance thereof, the RCEO directed the Rent Control Inspector (In short 'RCI') to inspect the accommodation in question. The RCI issued a notice under Rule 8 (2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (In short 'the Rules') which was served upon the petitioner No. 1 through his brother Petitioner No. 2, Purushottam Das. The duplicate copy of the said notice bears his signature. The landlords filed their written statement before the RCI, who submitted its report to the RCEO. The RCEO, after perusing the aforesaid report, issued notice to the petitioner No. 1. The duplicate copy of the said notice bears his signature. The landlords filed their written statement before the RCI, who submitted its report to the RCEO. The RCEO, after perusing the aforesaid report, issued notice to the petitioner No. 1. In support of their case, the landlords filed the affidavits of Sri Sharad Chandra Saxena, Amit Bhalla, Ramesh Wadhawan and Vinod Kumar, and also the voter list and identity card issued by the Election Commission before the court below to demonstrate that the petitioner No. 1, in fact has shifted to his new residence. (ii) The petitioner No. 2, Purushottam Das filed his objections against the report of the RCI supported by an affidavit before the RCEO wherein it was stated that, in fact, his father Sobhraj was the tenant of the Premises No. 110/195 and after his death, the same was inherited by him along with his brother petitioner No. 1, Radha Krishna and mother. It was further alleged in the objection that the respondents have wrongfully taken the possession of the first floor portion of the house which was in the tenancy of his mother. It was further stated that since , the Petitioners are residing in the disputed premises , it cannot be said to be vacant. The court below after hearing the parties declared the vacancy of the disputed Premises and it was released in favour of the respondent-landlords. Against the order of vacancy and release, a revision was preferred by the petitioners which was also dismissed by the impugned order dated 26.7.2010. Hence, the present writ petition. (iii) A perusal of the record shows that the vacancy proceedings with respect to the first floor accommodation of the disputed house was also initiated in the year 2003 and the matter was hotly contested by the petitioner No. 2, however, it was (first floor accommodation) declared vacant and released in favour of the respondent-landlords. Thereafter, a writ petition 170 of 2004 (Purusottam Das Vs. Rent Control and Eviction Officer) was filed by the petitioner No. 2 which was dismissed by a detailed order dated 20.05.2010 by this Court and the vacancy order was confirmed. 3. Learned counsel for the petitioners has submitted that the petitioners are the legal heirs of the original tenant Shobhraj, after his death, the tenancy was inherited by them along with their mother. 3. Learned counsel for the petitioners has submitted that the petitioners are the legal heirs of the original tenant Shobhraj, after his death, the tenancy was inherited by them along with their mother. He further submitted that no notice under Rule 8 (2) of the Rules, 1972 was ever served upon the petitioner No. 1. It was further submitted that RCEO has not assigned any reason for declaring the vacancy and by a non-speaking order the disputed Premises No. has been declared vacant. He further submitted that the order dated 20.5.2005 passed by this Court in Writ Petition No. 170 of 2004 (Purusottam Das Vs. Rent Control and Eviction Officer) whereby the order of vacancy with respect to first floor portion was confirmed by this Court has no bearing whatsoever on the issue in hand. He further submitted that the petitioner No. 2 has neither acquired the House No. 271A, Gujaini, Kanpur Nagar nor has shifted into it. 4. Heard the learned counsel for the petitioner and perused the material available on record. 5. A bare perusal of the record goes to show that the house No. 110/194, R. K. Nagar, Kanpur comprises of ground floor and first floor and by order dated 9.10.2003, first floor portion of the House No. 110/194 was declared vacant under Section 12 of Act, of which, the petitioner No. 2 claimed himself to be the tenant. Aggrieved by the said order, the petitioner No. 2, Purushottam Das after the dismissal of the revision filed a writ petition No. 170 of 2004 (Purushottam Das vs.RCEO) against the order of vacancy dated 9.10.2003 and this Court by a detailed order dated 20.5.2005 dismissed the writ petition. 6. At this juncture, it would be relevant to quote the relevant portion of the order dated 20.5.2005 passed in the Writ Petition No. 170 of 2004, which reads as follows; "The case of the petitioner is that he is also one of the sons of deceased Shobh Raj and Krishna Devi. One Radha Krishna is living on ground floor and Purshottam was living with Krishna Devi on the first floor. Purshottam has also filed some documents like voter list, passport, and PAN Card of the Income Tax Department and on the strength of the aforesaid documents claimed that in fact he was in possession of the accommodation in question after the death of Shobh Raj and Krishna Devi. Purshottam has also filed some documents like voter list, passport, and PAN Card of the Income Tax Department and on the strength of the aforesaid documents claimed that in fact he was in possession of the accommodation in question after the death of Shobh Raj and Krishna Devi. He, therefore, inherited the tenancy after Krishna Devi and Naresh Kumar has built a house and he had no interest. This fact has been denied by the landlords and also this fact was denied by Krishna Devi who filed a suit against Purshottam stating therein that Purshottam played fraud and that Purshottam is not son of Shobh Raj. It is admitted case of the petitioner that he had filed an application for review Under Section 16 (5) of the Act which has been decided against him by the Rent Control and Eviction Officer but he has not challenged that order, instead he has added a prayer in the writ petition which runs as Under : "Issue writ, order or direction in the nature of certiorari quashing the order dated 21st July, 2004." The law settled by the Apex Court is that unless the order which is sought to be quashed by certiorari is annexed, the relief of quashing of the order cannot be granted. In this view of the matter the relief of quashing of order dated 24th July, 2004, cannot be granted to the petitioner. Now coming to the merit of the case for declaring vacancy, admittedly the petitioner was found not to be in possession. He has never been found to be living with Shobh Raj and Krishna Devi. Report of the Rent Control Inspector says that Naresh Kumar has chosen not to contest the matter in spite of service on him, probably because of the agreement entered into between the landlords and Krishna Devi that she will have right to live in the accommodation in dispute so long she is alive or till any of her heirs purchases or builds a house in the same city. Admittedly since Naresh Kumar purchased a house, the tenancy stood surrendered.In view of the aforesaid facts the view taken by the Rent Control and Eviction Officer that there is vacancy as contemplated Under Section 12 of the Act cannot be said to suffer from any error much less error on the face of record. Admittedly since Naresh Kumar purchased a house, the tenancy stood surrendered.In view of the aforesaid facts the view taken by the Rent Control and Eviction Officer that there is vacancy as contemplated Under Section 12 of the Act cannot be said to suffer from any error much less error on the face of record. Learned Counsel for the petitioner, Sri B. D. Mandhyan, has relied upon a decision of Apex Court in 1985 (2) ARC 85, Mohd. Azeem v. District Judge, Aligarh and Others. To me it appears the facts of the case decided by the Apex Court and the facts of the present case are completely different as observed in paragraph 6 of the said judgment : "There is no dispute that along with Manzoor his wife, his three sons and the daughter were living in the disputed premises. After Manzoor's death, the widow, the three sons and the daughter continued to live in that house. There is reference to payment of rent in the order of the Prescribed Authority and in the petition for special leave an assertion has been made that it was the appellant who had been paying rent after the death of Manzoor. This plea has not been controverted. In the setting of things, the appellant being the eldest son, was naturally expected to pay the rent. There is material on record to show that Azeem and Naim were already married and have been living along with their wives in the house along with other members of the family." 7. Another case relied upon by Sri Mandhyan is the decision of this Court in 1999 (2) ARC 241, Madan Gopal Maheshwari v. District Judge, Mathura and Others. As would be clear from the facts of the case of Madan Gopal Maheshwari it will be clear that the said case was also decided on the facts of the case and thus the law laid down is not applicable to the present case. In view of what has been stated above I do not find any force in the writ petition it deserves to be dismissed and is hereby dismissed. Interim order, if any, stands vacated." 8. The facts of the aforesaid writ petition No. 170 of 2004 clearly goes to show that the petitioner No. 2 was earlier claiming himself to be the tenant of the first floor of the Premises No. 110/195. Interim order, if any, stands vacated." 8. The facts of the aforesaid writ petition No. 170 of 2004 clearly goes to show that the petitioner No. 2 was earlier claiming himself to be the tenant of the first floor of the Premises No. 110/195. However, when his claim was rejected and first floor portion of the house no. 110/195 was declared vacant under Section 12 of the Act and vacancy was confirmed by this Court in Writ Petition No. 117 of 2004 by this Court, the petitioner No. 2 took a complete U-turn and starting claiming himself to be the tenant of the ground floor portion of the premises. 9. The petitioner No. 1 alone was residing in the Premises No. 110/195 (ground floor) and since he had shifted to his new residence No. 271A, Gujaini, Kanpur Nagar around five years back, the disputed premises became vacant within the meaning of Section 12 of the Act. The petitioners have also not filed any allotment order in their favour, as such, the provision of Section 13 is fully applicable in the matter. The respondent-landlords have also filed affidavits of Sri Sharad Chandra Saxena, Amit Bhalla, Ramesh Wadhawan and Vinod Kumar along with voter list and identity card in the court below to demonstrate that the petitioner No. 1 has shifted his residence. 10. It is also relevant to note that the petitioner No. 1 has not filed any affidavit to rebut the contention of the landlord that he was not acquired a new premises. The record of the case also goes to show that the notice under Rule 8 (2) of the Rules was served upon the petitioners and the petitioners also participated in the proceedings of the vacancy and the court below have passed the impugned orders on merits after giving opportunity of hearing to the petitioners. 11. The petitioners cannot be permitted to blow hot and cold simultaneously, since earlier the petitioner No. 2 was claiming himself to be the tenant of the first floor of the Premises No. 110/195 and he unsuccessfully contested the matter upto the High Court, when finally he lost from this Court, he took a summersault and started claiming tenancy right over the ground floor accommodation. Even if it is assumed that late Shobhraj (father of the petitioners) was the original tenant of the disputed premises, after his death, petitioners jointly inherited the tenancy along with their mother. But since one of the joint tenant i.e. Radha Krishna, petitioner No. 1 has already acquired a new premises and shifted there, vacancy of the disputed premises has occurred within the meaning of Section 12 (1) (c) / 12 (3) of the Act. 12. In this connection, reference may be made to the decision of the Apex Court in the Case of Harish Tandon Vs. Additional District Magistrate and others 1995 (1) ARC 220 (SC) wherein the Apex Court has held that on the death of tenant, the heris, succeed the tenancy rights as joint tenants, he represents the estate of the deceased as heirs. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payment therefore and the heirs succeed to the tenancy as joint tenants. 13. Both the courts below have recorded a finding of fact that the Petitioner No. 1 has shifted to house No. 171, Gujnaini, Kanpur Nagar and the petitioner No. 2, Purushottam Das was never the tenant of the ground floor portion. The said findings are based on the evidence and the material available on record. The courts below have given cogent, convincing and satisfactory reasons while passing the order of vacancy. This Court cannot substitute its opinion for the opinion of the courts below unless it is found that the conclusion drawn by the courts below are erroneous, perverse or manifestly illegal. I find no illegality or infirmity in the impugned orders passed by the lower courts. 14. In the result, the writ petition is dismissed. Petition Dismissed.