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2018 DIGILAW 773 (ALL)

KAMLESH SHARMA v. ADDITIONAL DISTRICT JUDGE

2018-04-02

SANGEETA CHANDRA

body2018
JUDGMENT Hon’ble Mrs. Sangeeta Chandra, J.—This petition under Article 227 of the Constitution of India has been filed challenging the orders of the Rent Control and Eviction Officer/Additional City Magistrate (IV), Kanpur Nagar, passed under Section 16 of the U.P. Rent Control and Eviction Act (hereinafter referred to as the Act No. 13 of 1972) dated 6.6.2016 and 11.7.2016 and the order dated 20.3.2018 passed by the revisional Court rejecting the revision. 2. Petitioner was the tenant of three rooms of House No. 86/3 of Deputy Ka Padav, Kanpur Nagar since 1972. The respondent No. 4 Anil Vaish, S/o Om Prakash Vaish moved an application for declaration of vacancy and release in his favour before the Rent Control and Eviction Officer/Additional City Magistrate (IV), Kanpur Nagar. An inquiry was carried out in the matter by the Rent Control Inspector, who found the petitioner in occupation of the three rooms in question. During the investigation Smt. Kamlesh Sharma had also shown the last allotment order which was made in favour of one Surendra Pandey. In the oral statement of Smt. Kamlesh Sharma and in the oral statement of her husband there is an admission before the Rent Control and Eviction Officer that they do not have any relation with the prior allottee Surendra Pandey. 3. When notices were issued, the landlady Smt. Vimla Gupta (respondent No. 3) has put in appearance through counsel. 4. Before the Rent Control and Eviction Officer, Smt. Vimla Gupta had admitted that Smt. Kamlesh Sharma was inducted by her as a tenant over the property in dispute, but later on she needed the said property for the increasing needs of her large family. She had therefore asked the petitioner to vacate the premises and had stopped taking rent from her. As a consequence of return of money orders, Smt. Kamlesh Sharma had submitted the rent before Civil Judge (Junior Division), Kanpur Nagar in Misc. Case No. 531/70/2011; Smt. Kamlesh Sharma v. Smt. Vimla Gupta, under Section 30(1) of the U.P. Act No. 13 of 1972. 5. The landlady also informed that a separate suit had been filed being S.C.C. Suit No. 188 of 2011; Smt. Vimla Gupta v. Smt Kamlesh Sharma, which is pending before the Court of A.D.J. 16, Kanpur Nagar praying for eviction of the tenant. 6. 5. The landlady also informed that a separate suit had been filed being S.C.C. Suit No. 188 of 2011; Smt. Vimla Gupta v. Smt Kamlesh Sharma, which is pending before the Court of A.D.J. 16, Kanpur Nagar praying for eviction of the tenant. 6. The Rent Control and Eviction Officer has recorded in the order impugned that initially the property in dispute was under the tenancy of one Munni Devi, later on in 1993, the same portion was let out to one Surendra Kumar Pandey. In 1998 Surendra Kumar Pandey vacated the said premises and the revisionist Smt. Kamlesh Sharma came under occupation. Initially this occupation was with the consent of the landlord, but later on differences surfaced between the two and the landlady Smt. Vimla Gupta stopped taking rent from the tenant and the tenant deposited the rent before the Civil Court as aforesaid. 7. One Anil Vaish (respondent No. 4 herein) moved an application for declaration of vacancy and release in his favour saying that since there was no allotment order in favour of Smt. Kamlesh Sharma she be declared as an unauthorized occupant/a vacancy be declared in the premises in question. 8. The Rent Control and Eviction Officer held that under Sections 11 and 13 of the U.P. Act No. 13 of 1972 there was no allotment order which could be shown by the petitioner in her favour and she was admittedly in occupation since 1998 onwards. The erstwhile tenant Surendra Kumar Pandey had an allotment order in his favour and when he vacated the premises in 1998 Smt. Kamlesh Sharma came into occupation without intimation to the Rent Control and Eviction Officer. 9. This finding of fact with regard to Smt. Kamlesh Sharma entering the premises without any allotment order has been affirmed by the Revisional Court. 10. The Rent Control and Eviction Officer on evidence submitted by the landlady regarding her bona fide need, looking into her large family, had first declared a vacancy on 6.6.2016 and thereafter ordered a release on 11.7.2016 in favour of the landlady rejecting the application for allotment made by respondent No. 4 Anil Vaish. 11. 10. The Rent Control and Eviction Officer on evidence submitted by the landlady regarding her bona fide need, looking into her large family, had first declared a vacancy on 6.6.2016 and thereafter ordered a release on 11.7.2016 in favour of the landlady rejecting the application for allotment made by respondent No. 4 Anil Vaish. 11. Both the orders passed by the Rent Control and Eviction Officer dated 6.6.2016 and 11.7.2016 were challenged by the petitioner in Rent Revision No. 5 of 2017 and the Revisional Court after placing reliance upon judgments rendered by this Court has come to a conclusion that even if a tenant comes into occupation of the premises initially with the consent of the landlord, but without a proper allotment order under U.P. Act No. 13 of 1972, such a tenant would become an “unauthorized occupant” liable to be evicted under Section 16 of the Act. Reliance was placed upon judgment rendered in Raj Kumar v. Ist Additional District Judge, Allahabad and others, 1988 (2) ARC 35, wherein this Court observed that under Section 13 of the Act there is a clear prohibition “Where a landlord or a tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise, than under an order of allotment or a release under Section 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorised occupant of such building or part thereof.” 12. The occupation of the writ petitioner in Raj Kumar (supra) was found by the Court to be in violation of the provisions of Section 13 of the Act as the writ petitioner could not establish that any rent had been paid prior to the coming into force of the Act. The Court observed that the writ petitioner even though he came into occupation of the property with the consent of the landlord would still be liable to be held to be an unauthorised occupant as he came into possession of the property without any allotment order. 13. The Court observed that the writ petitioner even though he came into occupation of the property with the consent of the landlord would still be liable to be held to be an unauthorised occupant as he came into possession of the property without any allotment order. 13. In Vijay Kumar Pandey v. Rent Control & Eviction Officer/Additional City Magistrate and others, 2014 (3) ARC 464 , a coordinate bench of this Court has similarly observed that the writ petitioner therein could not establish that he was occupying the property as a tenant before coming into operation of the Act and was thus liable to be evicted as an unauthorised occupant. 14. Learned counsel for the respondents has placed reliance upon a judgment rendered by the Supreme Court in Mohd. Shahnawaz Akhtar and another v. First A.D.J., Varanasi and others; 2003 (UP) RCC 360, setting out the limit of jurisdiction of the High Courts in issuing a writ of certiorari under Article 226 of the Constitution of India against judicial orders passed by the competent Civil Courts while placing reliance upon an earlier constitution bench in Syed Yakoob v. K.S. Radhakrishnan and others; 1964 SCR (5) 64. 15. In rejoinder the learned counsel for the petitioner has submitted that even for a release application to be allowed in favour of the landlady in a proceeding under Section 12 or under Section 16 of the Act, the bona fide requirement of the landlady for release in her favour can only be considered in terms of the need of the family of the landlord. The definition of the “family” is given in Section 3(g) of U.P. Act No. 13 of 1972 which reads thus : “3(g) “family” in relation to a landlord or tenant of a building, means, his or her- (i) spouse, (ii) male lineal descendants, (iii) such parents, grand-parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building.” 16. It has been submitted by learned counsel for the petitioner that in the order of release, passed by the Rent Control and Eviction Officer, the genuine and bona fide need of the landlady (respondent No. 3 herein) has been considered in terms of occasional need arising when married daughters came for visiting their mother (the landlady in question). It was an occasional need for a guest room. Such a need has not been counternamed nor is admissible under the provisions of the Act. Section 21 which deals with the release application made by the landlord also talks of need of the landlord for occupation by himself or by any member of his family or by persons for whose benefit the property is held by him. 17. It has been submitted by learned counsel for the petitioner that both the provisions for release either under Section 16 or under Section 21 are only with respect to “family” of the landlord and married daughters who came visiting their mother occasionally did not fall within the term of “family” as defined under Section 3(g) of the Act. 18. The argument raised by learned counsel for the petitioner before this Court being a legal argument relating to a question of law, can be looked into by this Court, if it does not require any detailed examination of disputed facts as mentioned in the order of the Rent Control and Eviction Officer and in the order of the Revisional Court. It appears that in both the orders impugned landlady had described her need to be bona fide only because when her daughters came alongwith their husbands and children for visiting their mother and she found it extremely difficult to accommodate them in the limited rooms available on the second and third floor of the house in question. 19. The argument of learned counsel for the petitioner not being raised before the Revisional Court for its consideration, requires this matter to be remanded to the revisional Court to be considered afresh with regard to the release order made in favour of the landlady looking into her bona fide need as aforesaid. 20. Consequently, the order of the revisional Court dated 20.3.2018 is set aside. 20. Consequently, the order of the revisional Court dated 20.3.2018 is set aside. The matter is remanded to the Court of Additional District Judge, Kanpur Nagar for consideration afresh whether release could have been made in favour of the landlady (respondent No. 3) when married daughters are not included in the definition of “family” under Section 3(g) of the U.P. Act No. 13 of 1972. 21. The petition is partly allowed to this extent.