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2016 DIGILAW 1445 (ALL)

R. Mishra (Razima Mishra) v. Punit Kanthariya

2016-04-19

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal, J. – Heard Sri Pramod Kumar Jain, learned Senior Advocate assisted by Sri Abu Bakht, learned counsel for the petitioner. 2. By means of the present petition, the order dated 10.2.2016 passed on application Paper No.30Kha under Section 34(g) read with Rule 22(d) & (f) of U.P. Act No.13 of 1972 was rejected. This application was filed in Rent Appeal No.59 of 2014, Smt. R. Mishra v. Punit Kantharia under Section 22 of U.P. Act No.13 of 1972 against the release order passed by the Prescribed Authority in Rent Case No.12 of 2007, Punit Kantharia v. Smt. R. Mishra. 3. It appears that for release of the residential accommodation comprising of three rooms, latrine, kitchen and bathroom situated at the ground floor of premises No.15/31 Civil Lines Kanpur Nagar, the release application under Section 21(1)(a) of the Act was filed on 30.5.2007. This application was contested by the petitioner who is defendant therein on the ground that the applicant is not the owner of the suit property as there is no family partition in respect of the house in question. It was also stated therein that the husband of opposite party namely Sri A.P. Mishra is the tenant of the disputed accommodation @ of Rs.150/- p.m. including of taxes towards rent. This release application was allowed by the Prescribed Authority and in appeal the Amendment Application Paper No.30Kha was filed with the plea to add a dispute regarding jurisdiction of the Prescribed Authority to proceed with the release application. 4. The submission is that the petitioner's husband had occupied the suit property without there being an allotment order and, therefore, at best she can be termed as an unauthorized occupant. The contract of tenancy as asserted by the landlord could not have been relied upon by the Prescribed Authority, to pass an order of release. Under Section 13 of the Act, there is a prohibition of occupation of a building in absence of an allotment order. For eviction of an unauthorized occupant, the release application on the basis a contract of tenancy which is void ab initio cannot be maintained. Reliance has been placed upon judgment of the Apex Court in Nutan Kumar & Ors. v. II Additional District Judge & Ors., 2002(2) ARC 645. 5. Relevant paragraph of the judgment is as follows: - "13. For eviction of an unauthorized occupant, the release application on the basis a contract of tenancy which is void ab initio cannot be maintained. Reliance has been placed upon judgment of the Apex Court in Nutan Kumar & Ors. v. II Additional District Judge & Ors., 2002(2) ARC 645. 5. Relevant paragraph of the judgment is as follows: - "13. In this view of the matter the decision of the Full Bench dated 20th May, 1993 cannot be sustained and is set aside. It is held that the law, as laid down in Nanakram's case, still holds the field. Thus unless the statute specifically provides that a contract contrary to the provisions of the statue would be void the contract would remain binding between the parties and could be enforced between the parties themselves. Consequently the judgment dated 20th September, 1993 dismissing the writ petition is set aside. The matter is sent back to the High Court for deciding the writ petition in accordance with the law. The appeals stand disposed of accordingly. There will be no order as to costs." 6. Having heard learned counsel for the parties and perused the record. 7. A careful perusal of last paragraph of the pronouncement of Apex Court in Nutan Kumar (Supra) indicates that the Full Bench decision of this Court dated 20.5.1993 was set aside and it was held that the contract of tenancy even if it is contrary to the provisions of the Statute and is a void contract would remain binding between the parties to the contract and can be enforced between the parties themselves. 8. Having carefully read the above ruling, this Court finds that the contract of tenancy between the applicant and the respondent-tenant is not disputed in the written statement. The defendant only states that the tenancy is in the name of her husband namely Sri A.P. Mishra and he is the sole tenant of the disputed property. The release order is not filed before this Court, therefore, the Court is not in a position to express any opinion on the issue of tenancy. 9. However, it is concluded that the assertion made in the application Paper No.30Kha regarding maintainability of the release application and the jurisdiction of the Prescribed Authority to entertain the same is totally misconceived. 10. 9. However, it is concluded that the assertion made in the application Paper No.30Kha regarding maintainability of the release application and the jurisdiction of the Prescribed Authority to entertain the same is totally misconceived. 10. In any case, even if it is accepted for the sake of argument that the contract of tenancy is void ab initio, it is binding between the parties. It does not lie in the mouth of the tenant to say that he is not bound by the contract or the landlord cannot file the release application for his personal need. 11. In view of the above discussion, on the plea raised by the learned counsel for the petitioner, the application Paper No.30Kha raising issue of jurisdiction is held misconceived application. It has rightly been rejected by the Appellate Court vide order dated 10.2.2016. 12. There is no merit. 13. Dismissed. Petition dismissed.