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2016 DIGILAW 86 (ALL)

Bhawani Shankar v. Yaqoob Ali

2016-01-07

SUNITA AGARWAL

body2016
JUDGMENT Sunita Agarwal, J. – Heard learned counsel for the parties and perused the record. 2. The present writ petition is directed against an order dated 19.2.2008 (stated to be an antedated order passed on 20.2.2008). 3. It appears that an application under Rule 22 (5) (f) of the Rules framed under U.P. Act No. 13 of 1972 was filed by the respondent no. 2 with the assertion that the landlord had contravened the provisions of the Act in taking illegal possession of the shop in question which was allotted by order dated 12.9.1978 jointly to two brothers namely respondent no. 2, Yaqoob Ali and respondent no. 4, Ahsan Ali. 4.This application was entertained by the Rent Controller Authority invoking the provisions of Sections 31 and 33 read with Rule 22 (f) of the Act and the Rules. The objections of the landlord with regard to the maintainability of the application filed before the Rent Controller Authority was rejected by order dated 19.2.2008 and hence this writ petition. 5. The first argument of learned counsel for the petitioner is that the order dated 19.2.2008 is an antedated order. In fact the matter was taken up on 20.2.2008 as is evident from the order-sheet and the objections of the landlord on the maintainability of the application filed by respondent no. 2 were rejected by a detailed order which was signed antedated i.e. 19.2.2008. 6. The second submission is that the application filed by respondent no. 2 on 5.7.2006 was wrongly entertained by the Rent Controller Authority invoking the provisions of Section 31 and 33 read with Rule 22 (f) of the Act and Rules. The petitioner has not contravened any provision of the Act and hence the Rent Controller Authority had no jurisdiction to entertain the application. In substance a right of re-entry was sought by means of the application dated 5.7.2006 by respondent no. 2 which was not within the jurisdiction of the Rent Controller Authority. 7. On the other hand, learned counsel for the respondent no. 2 submits that the respondent no. 2 was a sitting tenant till the year 2006 when he moved an application pleading contravention of the provisions of the Act. The landlord had illegally grabbed his shop in connivance with his brother respondent no. 4 who was tenant in common. The tenancy was in the name of two persons namely Yaqoob Ali respondent no. 2 was a sitting tenant till the year 2006 when he moved an application pleading contravention of the provisions of the Act. The landlord had illegally grabbed his shop in connivance with his brother respondent no. 4 who was tenant in common. The tenancy was in the name of two persons namely Yaqoob Ali respondent no. 2 and Ahsan Ali respondent no. 4 and any arrangement between Ahsan Ali and the landlord would not be binding upon the respondent no. 2, the applicant. 8. To examine these contentions of the learned counsel for the parties, certain facts of the case brought on record are required to be sifted. The admitted fact of the matter is that the shop in question was allotted in the name of two persons on 12.9.1978 namely Yaqoob Ali the respondent no. 2 and Ahsan Ali the respondent no. 4. It remained in occupation of Ahsan Ali and he was doing his business under the name and style of M/s. Bhartiya Tailor. This fact is reflected from own assertion of Yaqoob Ali, the applicant/respondent no. 2 in paragraphs 2' and 3' of the application dated 5.7.2006 filed by him. 9. It appears that the building in which the shop in dispute existed had collapsed in the year 2002 and a new three storied building having basement, Ground floor, first floor and second came into existence. The new building was assessed for the first time in the year 2008 and was entered in the municipal records as House (new) no. 63/156. The Municipal Assessment extract of 1993-2008 filed along with the supplementary affidavit indicates that prior to the demolition and new construction, the old building consisted of one big shop, staircase and one big room at the first floor. 10. It appears that a settlement has been arrived between the sitting tenant Ahsan Ali and the petitioner landlord, pursuant to which a registered sale deed dated 20.11.2003 was executed in favour of Ahsan Ali and two newly constructed rooms at the first floor and second floor were handed over to him. After execution of the sale deed, Ahsan Ali executed a surrender deed of his tenancy in the old shop. It is stated by the landlord that the surrender deed was executed on 29.12.2003 in the presence and with the consent of Yaqoob Ali respondent no. 2 and two other witnesses. 11. After execution of the sale deed, Ahsan Ali executed a surrender deed of his tenancy in the old shop. It is stated by the landlord that the surrender deed was executed on 29.12.2003 in the presence and with the consent of Yaqoob Ali respondent no. 2 and two other witnesses. 11. In paragraph 18' of the counter affidavit, it is stated by the respondent no. 2 that the sale deed dated 20.11.2003 could not have been executed in the name of respondent no. 4 only and any compromise entered into between the petitioner and the respondent no. 4 his brother is illegal in the eye of law. The respondent no. 2 who was the tenant in common of the shop in question could not have been deprived of his tenancy rights on the basis of the surrender deed executed by his brother, one of the tenant. The tenancy rights of respondent no. 2 are his own and still survives as it was never surrendered. 12. It appears that after a period of three years of the execution of sale deed i.e. in the year 2006, the application dated 5.7.2006 was filed by the respondent no. 2 before the Rent Control Officer to seek possession of the shop in question. This application was registered as Case No. 99 of 2006. It has also come up on record that in the year 2006 some dispute had occurred between two brothers namely Yaqoob Ali and Ahsan Ali with regard to some properties in their ownership and possession. Resultantly, the proceedings under Section 145 Cr.P.C. were undertaken and the matter was mutually settled later on. 13. In the counter affidavit to the writ petition, it is stated by respondent no. 2 in paragraph 10' that the property in dispute was in a perfect fit condition and the shop with the whole building did not collapse on its own rather it is a story concocted by the petitioner only to give colour to his case. 14. In paragraph 4' of the counter affidavit, it is stated that the building in question was not an old and dilapidated building rather it was in a fit condition and did not require any demolition and reconstruction. 15. It is again stated in paragraph 11' of the counter affidavit that there was no reason or occasion for the landlord to apply for reconstruction of the building. The deponent/respondent no. 15. It is again stated in paragraph 11' of the counter affidavit that there was no reason or occasion for the landlord to apply for reconstruction of the building. The deponent/respondent no. 2 had no knowledge regarding the demolition and reconstruction of the whole building because he was tenant of only one shop in which he was in his possession. The deponent/respondent no. 2 had never consented for demolition and reconstruction. 16. Again in paragraph 13', it is stated that the building did not collapse and the fact that the rent was paid by his brother would not be sufficient to assume nor there was any material on record to show that Ahsan Ali was the sole tenant. The deponent/respondent no. 2 had not surrendered his tenancy rights at any point of time. 17. In paragraph 14', it is reiterated that the building never collapsed but it was intentionally demolished by the landlord and the plea that the building had collapsed was raised only to give colour to his case. 18. In paragraph 15' of the counter affidavit, it is stated that there was no partition between Yaqoob Ali and Ahsan Ali. 19. Same assertions have been reiterated in the subsequent paragraphs of the counter affidavit. 20. A perusal of the paragraphs 2' and 3' of the application dated 5.7.2006 shows that the respondent no. 2 had admitted that he was not using the shop in question for his business. He stated that he was continuously ill for so many years and was unable to move and mostly remained at home. In his absence, the shop in tenancy was grabbed by his brother respondent no. 4 Ahsan Ali who had continued to do the business in the name of M/s Bhartiya Tailor, Mathura Sahar. Thereafter, in paragraph 4, it is stated that the landlord had colluded with the respondent no. 4 in getting the tenancy surrendered whereas the tenancy of the respondent no. 2 still continued. It is further stated in paragraph 6' of the application that he came to know about the fact of surrender of tenancy only on 4.7.2006 i.e. a day before the date of filing of the application. 21. 4 in getting the tenancy surrendered whereas the tenancy of the respondent no. 2 still continued. It is further stated in paragraph 6' of the application that he came to know about the fact of surrender of tenancy only on 4.7.2006 i.e. a day before the date of filing of the application. 21. It is admitted fact of the matter that only one shop was allotted in the name of two brothers and in lieu of that shop the landlord had already executed sale deed dated 20.11.2003 in favour of one of the tenant Ahsan Ali who was doing his business in the name and style of M/s. Bhartiya Tailor. 22. The fact that the building was demolished/collapsed in the year 2002 is not disputed by the respondent no. 2 in the counter affidavit. Only assertion is that the demolition was an act of mischief by the landlord and it did not automatically collapsed. 23. A new building having basement, Ground floor, first floor and second floor came into existence in the year 2002 and with the execution of sale deed in the year 2003 in the name of the sitting tenant/occupant in lieu of the old shop under tenancy, the landlord tenant relationship came to an end/ceased to exist. 24. It appears that earlier some arrangement has been arrived at between the brothers which was later on disputed by respondent no. 2 on account of dispute occurred between them. 25. From own averment of respondent no. 2, it is clear that he was not using the shop for doing any business at the relevant point of time. There is no averment that in the firm namely M/s. Bhartiya Tailors the respondent no. 2 was also a partner. After new constructions, in lieu of tenancy of one shop sufficient accommodation has been given to brother Ahsan Ali who was actually running his independent business at the time of demolition. 26. In view of the above discussion, this Court comes to an irresistible conclusion that the respondent no. 2 had surrendered his tenancy rights in favour of his brother for the reason that he stopped doing business therein and handed over the entire shop to his brother. There is admission of respondent no. 2 that the rent was paid to the landlord by his brother respondent no. 4 and the respondent no. 2 never paid the rent. 2 had surrendered his tenancy rights in favour of his brother for the reason that he stopped doing business therein and handed over the entire shop to his brother. There is admission of respondent no. 2 that the rent was paid to the landlord by his brother respondent no. 4 and the respondent no. 2 never paid the rent. The purpose of allotment of shop was to provide a space for the business to the allottees. Admittedly only Ahsan Ali was doing business in the name of M/s. Bhartiya Tailor, and, therefore, he was the only sitting tenant in the year 2002 when the building was demolished. 27. The provisions of Sections 31 and 33 are not attracted in the facts and circumstances of the instant case. 28. No mischief or any act of contravention of the provisions of the Act has been committed by the landlord nor there is any such allegation. The Rent Controller Authority committed a grave error of law in assuming its jurisdiction without sifting the facts of the case. The application dated 5.7.2006 is a misconceived application and has been filed with the view to grab the property of the landlord. 29. This Court does not find any justification in the action of the Rent Controller Authority in entertaining such an application and in proceeding to decide it on merit by invoking Sections 31 and 33 of the Act. 30. The order dated 19.2.2008 stated to have been passed on 20.2.2008 is hereby quashed. 31. The objections filed by the landlord are allowed. 32. The application dated 5.7.2006 filed by respondent no. 2 is hereby rejected. 33. The writ petition is allowed. No order as to costs. 34. However, it is open for the respondent no. 2 to take recourse to an appropriate proceeding in accordance with law for redressal of his grievances against his brother respondent no. 4, who according to the respondent no. 2 had grabbed the shop under his tenancy. Petition allowed.