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2015 DIGILAW 1355 (ALL)

Shanti Devi v. Special Judge (E. C. Act)

2015-05-22

SUNEET KUMAR

body2015
JUDGMENT Suneet Kumar, J. The petitioners are tenants of premises No. 82 Gaushala Jajmau, Kanpur Nagar on Rs. 110/- per month. The tenanted accommodation consists of two rooms, three tin sheds, one khaprail shed room, kitchen, latrine, bathroom and an open space adjoining the court yard. The respondent/landlord filed a release application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 being Rent Case No. 42 of 1999. The respondent/landlord asserted that they are in bonafide need of the accommodation for their family consisting of 12 persons, it was further asserted that at present the respondents are residing in a tenanted accommodation at Sheetla Bazar, Jajmau, Kanpur Nagar. The petitioner/tenant contested the application, the Prescribed Authority recorded a finding of bonafide need and comparative hardship in favour of the landlord, accordingly, allowed the release application on 12 December 2007, aggrieved, the petitioners preferred an appeal under Section 22 of the Act being Rent Appeal No. 4 of 2008. The appellate authority rejected the appeal and affirmed the judgment and order passed by the Prescribed Authority. Aggrieved, the petition under Article 226 of the Constitution of India is directed against the aforementioned orders. 2. It is submitted on behalf of the petitioners that there exists no relationship of landlord and tenant over the property in dispute which was trespassed, therefore, the release application for that portion of the accommodation was not maintainable. Secondly, it is submitted that the petitioners are practically in occupation of only one room, the other portion are KACHCHA construction. It is, therefore, contended that question of part release of the accommodation was not considered in terms of Rule 16(1)(d) being mandatory. 3. In rebuttal, it is contended that in the release application the respondent/landlord had specified the accommodation under the tenancy of the petitioner/tenant which was not denied in the objection/written statement, this plea is being raised for the first time before this Court in writ jurisdiction. The orders impugned are otherwise lawful and legal and requires no interference. 4. In order to consider the rival submissions, it would be essential to peruse the pleadings of the respective parties. 5. The orders impugned are otherwise lawful and legal and requires no interference. 4. In order to consider the rival submissions, it would be essential to peruse the pleadings of the respective parties. 5. In the release application, it was stated that the tenant is in use and possession of the tenanted accommodation, the boundaries, whereof, has been detailed at the foot of the application; in paragraph 4 it was averred that the tenanted accommodation consists of two rooms, three tin sheds, one Khaprail shed room, kitchen, latrine, bathroom and an open space adjoining the courtyard. In paragraph no. 6, it was stated that the petitioners are residing in the said accommodation in the capacity of tenants. In the objection, thereto, it was admitted that the respondent/landlord are realizing the rent from the petitioners since long, the premises was taken on rent in 1978 on Rs. 5/- per month, thereafter, the rent was enhanced, presently Rs. 110/- per month is being paid for the accommodation. The premises and area under the tenancy of the petitioner was not disputed. Hence, upon perusal of the application and the objections, it is evident that no plea was raised by the landlord that the tenant/petitioner was a trespasser of a portion of the disputed property beyond the tenanted premises nor was the case of the petitioner that he had encroached upon an area beyond the tenanted accommodation. 6. Learned counsel for the petitioner in order to substantiate his argument placed reliance upon an affidavit sworn by the fourth respondent Shiv Shankar Sahu alias Bhondu Sahu filed in rebuttal to an affidavit filed by way of evidence by Jagmohan Singh the tenant in chief. In paragraph 4 of the affidavit it has been stated that the petitioner (opposite party) a tenant who was residing in only one room, verandah-cum-khaprail shed adjoining to each other, gradually encroached the open courtyard adjoining other open space of the said premises. The petitioner was tenant of one room and the rest of the accommodation ought to be deemed unlawful occupation. 7. The pleadings of the respective parties would reflect that the respondent/landlord had clearly and categorically detailed the premises that was in the tenancy of the petitioner, which was admitted in the objection/written statement. The petitioner never disputed that he is not in the tenancy of the premises that was detailed in the release application. 7. The pleadings of the respective parties would reflect that the respondent/landlord had clearly and categorically detailed the premises that was in the tenancy of the petitioner, which was admitted in the objection/written statement. The petitioner never disputed that he is not in the tenancy of the premises that was detailed in the release application. The averments made in rebuttal to the evidence filed by way of an affidavit cannot be read beyond the pleadings of the respective parties. 8. It is admitted by learned counsel for the petitioner that the petitioner had not raised the objection either before the Prescribed Authority or the appellate court that the petitioner is a trespasser on a part of the premises, rather the case of the petitioner/tenant was that he is the tenant of the premises which has been detailed in the release application, therefore, the plea which was not raised before the authorities cannot be raised for the first time before the writ court. It is also relevant to note that the proceedings are summary in nature to be decided on the basis of affidavits, therefore, the pleadings that was not made or issues not agitated upon either before the prescribed authority or appellate authority cannot be gone in writ jurisdiction. 9. Learned counsel for the petitioner would submit that the mandatory provisions of Rule 16(d) of the Rules framed under the Act regarding part release of the premises of the disputed premises has not been considered by the appellate authority. Rule 16(d) reads as follows: - "Where the tenant's needs would be adequately met by leaving with him a part of the building under tenancy and the landlord's need would be served by releasing the other part, the prescribed authority shall release only the other part of the building." 10. I have perused the memo of appeal, no ground regarding part release of the premises that would have met the purpose of the landlord was taken by the petitioner. The plea of part release of the disputed premises is unsustainable as a finding has been recorded by the authorities that despite the respondent/landlord having there own premises, which is under the tenancy of the petitioner, are residing in a tenanted accommodation. This fact is not disputed by the learned counsel for the petitioner. The plea of part release of the disputed premises is unsustainable as a finding has been recorded by the authorities that despite the respondent/landlord having there own premises, which is under the tenancy of the petitioner, are residing in a tenanted accommodation. This fact is not disputed by the learned counsel for the petitioner. Further, it is pleaded and pressed before this Court that the petitioner practically has one room, other room, kitchen etc. are kuttcha. The release application was filed in 1999, sixteen years has passed since then. The minor members of the respondent family have all become major. The part release in such circumstances would not subserve the purpose of either the landlord or the tenant. 11. Considering the facts and circumstances and for the reasons stated hereinabove, I do not find any merit in the petition. 12. It is made clear that no other point or ground was pressed. 13. The writ petition is accordingly dismissed in limine. 14. However, it is provided that in case the petitioners give an undertaking on oath before the Special Judge (E.C. Act), Kanpur Nagar that they shall vacate the premise in question and hand over the possession of the same peacefully to the respondent-landlords on or before 30 October 2015, eviction of the petitioners be not done till then. The aforesaid undertaking on oath shall be given by the petitioners before the court below within a period of fifteen days from today and the petitioners shall deposit the monthly rent of the premises in question before the Special Judge (E.C. Act), Kanpur Nagar, as per current rent fixed and shall continue to deposit the same by 07th of each calendar month till the vacation of the premises in question, which amount may be permitted to be withdrawn by the respondent-landlords after due verification by the court concerned. 15. In case of default, protection granted above to the petitioners shall automatically stand vacated.