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2015 DIGILAW 11 (UTT)

Kamal Mehta v. Additional District Judge

2015-01-07

SUDHANSHU DHULIA

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JUDGMENT Sudhanshu Dhulia, J. 1. This is a writ petition by the petitioner who challenges orders passed by the Rent Control Authorities under Section 12 and thereafter under Section 16 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (from hereinafter referred to as “the U.P. Act No. 13 of 1972”). This writ petition was filed before the High Court of Judicature at Allahabad way back in the year 1993. An interim order was passed in favour of the petitioner on 11.08.1993 by learned Single Judge, which reads as under:- “Issue notice. Until further orders the petitioner shall not be evicted from the premises in dispute.” 2. It is not clear from the officer report as to whether respondent no.3 was served by the petitioner, as till date there is no counter affidavit on record on behalf of any of the respondents. 3. This writ petition stood transferred to this Court under the provisions of Section 35 of U.P. Reorganization Act, 2000. It was dismissed for non-prosecution on 28.03.2006, by the following orders:- “None appears for the petitioners. Though called twice. The writ petition is dismissed for want of prosecution. Interim order dated 11-08-1973 stands vacated.” 4. Prior to it, there is an order dated 03.05.2005, which is the service report of the office, which says that “O.P. No.3 unserved due to incorrect address.” 5. Now after a period of eight years since the dismissal of the petition for non-prosecution, an application (MCC No.8 of 2015) for recalling the said order dated 28.03.2006 along with the delay condonation application (CLMA No.55 of 2015) has been filed. According to the present petitioner/applicant, he could get knowledge of the dismissal only in the year 2014 when execution proceedings were initiated by the landlord. He further states that the delay has been caused due to medical condition etc., Although, there is an inordinate delay in the matter but purely in the interest of justice, the delay is condoned and for the same reasons restoration application is also allowed. The writ petition is restored to its original number. 6. Now the matter is being argued by the learned counsel for the petitioner Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Vikas Bahaguna, Advocate and Mr. R.C. Arya, learned Standing Counsel for the respondent nos. 1 & 2. Heard on the merits. 7. The writ petition is restored to its original number. 6. Now the matter is being argued by the learned counsel for the petitioner Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Vikas Bahaguna, Advocate and Mr. R.C. Arya, learned Standing Counsel for the respondent nos. 1 & 2. Heard on the merits. 7. The petitioner in this matter has enjoyed a stay order of the Court for more than 20 years. Strangely the petitioner is not even a tenant of the property. Although in paragraph 1 of the writ petition, he specifically claimed to be a tenant but on specific question put to the learned senior counsel for the petitioner Mr. Arvind Vashistha it has come out that the “tenant” i.e. the petitioner, was staying in the accommodation since 1975 by way of an understanding of the actual tenant Mr. C.P. Sharma. The accommodation in question comes under the purview of the Act No.13 of 1972. Petitioner was actually never a tenant in the premises. Therefore, at best his status can be of a licensee or otherwise that of a rank trespasser. Nevertheless, he filed a writ petition before the Hon’ble High Court of Judicature at Allahabad and obtained a stay order and remained possession of a property on which apparently he has not been able to show any claim. 8. The concerned property is a premises which is being used as a residential accommodation. The tenant is one Mr. C.P. Sharma and the landlord is Sri Shiv Nath Sanskrit Vidyalaya, Dehradun. One Mr. Sambhu Prasad Semwal moved an application before the Rent Control and Eviction Officer for declaring the said premises as vacant under Section 12 of the Act No. 13 of 1972 on ground that the premises were allotted to one Mr. C.P. Sharma, who carries the business of export and import, now resides in Canada and for all practical purposes the premises are vacant. 9. Notices were sent to the landlord. The landlord categorically states that the tenant in question was Mr. C.P. Sharma. The Rent Control and Eviction Officer after hearing the matter came to a conclusion that the premises are indeed vacant and he passed an order dated 11.02.1987 under Section 12 of the Act No. 13 of 1972, declaring the premises to be vacant. 10. The landlord categorically states that the tenant in question was Mr. C.P. Sharma. The Rent Control and Eviction Officer after hearing the matter came to a conclusion that the premises are indeed vacant and he passed an order dated 11.02.1987 under Section 12 of the Act No. 13 of 1972, declaring the premises to be vacant. 10. Thereafter, on 02.03.187 the landlord Sri Shiv Nath Sanskrit Vidyalaya, Dehradun moved a release application, although the release application was dismissed vide order dated 12.05.1987. Thereafter, the landlord i.e. Sri Shiv Nath Sanskrit Vidyalaya, Dehradun filed a revision against the said order dated 12.05.1987. The grounds shown by the landlord was that Shiv Nath Sanskrit Vidyalaya has no accommodation for housing as well as for other reasons. The revision was allowed and the premises were released in favour of the landlord. 11. At this stage, the petitioner who was never a party before the Rent Control and Eviction Officer as well as revisional court, filed the present writ petition before the High Court of Judicature at Allahabad, which stayed the order of the revisional court, which is referred above. 12. The first question is about the locus of the petitioner. The petitioner states that he is residing in the premises since 1975, the proof for which he relies upon electoral roll, electricity bills of the residential premises etc. However, the fact remains that the petitioner does not come under the definition of tenant as given in the Act No.13 of 1972. The tenant is defined under Section 3 (a) of the Act No.13 of 1972, which reads as under:- “3. Definitions – In this Act, unless the context otherwise requires – (a) Tenant, in relation to a building, means a person by whom its rent is payable, and on the tenant’s death - (1) In the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death. (2) In the case of a non-residential, his heirs. Explanation - An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant.” 13. There is nothing on record to show that the rent was payable by the petitioner. (2) In the case of a non-residential, his heirs. Explanation - An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant.” 13. There is nothing on record to show that the rent was payable by the petitioner. Moreover, in the order of the Rent Control and Eviction Officer as well as in the order of the revision court, the categorical finding has been given that the tenant was one Mr. C.P. Sharma, a fact which is admitted by the landlord Sri Shiv Nath Sanskrit Vidyalaya Dehradun. It has also come in the order of the revisional court that no one has filed an application against the order of the vacancy dated 11.02.1987. 14. The petitioner, therefore, is rank trespasser on the property. At best he can be said to be a licensee, but never a tenant. A writ petition by the petitioner, who is not a tenant is not even maintainable. Although the learned counsel for the petitioner Mr. Arvind Vashistha, Senior Advocate has tried to draw the attention of this Court regarding the illegality/anomalies committed by the concerned authority for not following the procedure given under U.P. Urban Building (Regulation of Letting, Rent and Eviction) Rules, 1972 for declaring the premises as vacant under Section 12, such as the notice was not given properly, etc. However, the fact remains those grounds are not available to the petitioner, who is a rank trespasser. The actual tenant Mr. C.P. Sharma is not before this Court. 15. In view thereof, the writ petition having absolutely no merit is hereby dismissed. Since the petitioner has admitted that he is staying in the premises in question w.e.f. 01.01.1975, it is made clear that the concerned landlord would be at liberty to initiate any proceedings available to him under the law to recover the compensation/damages etc. for the said occupation. As far as petitioner is concerned, the petitioner shall vacate the premises within three months from today and shall handover the peaceful possession of the property to the landlord, on or before April 10, 2015. 16. Since the respondents are not before this Court, the Registrar General of this Court is hereby directed to apprise respondent no.3 as well as the District Magistrate, Dehradun about this order, so that effective compliance of the order can be made. 17. No order as to costs.