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2019 DIGILAW 112 (ALL)

Avadhesh Kumar Gupta v. Gulam Mohammad

2019-01-11

SANGEETA CHANDRA

body2019
JUDGMENT : Sangeeta Chandra, J. This writ petition has been filed by the tenant petitioner challenging order dated 09.03.2018 passed by Additional District Judge rejecting the PA Appeal No. 2 of 2014 preferred against judgment and order dated 31.10.2014 passed by Prescribed Authority in PA Case No. 4 of 2008: Gulam Mohammad Vs. Avadhesh Kumar Gupta. 2. The facts which are relevant for decision of the controversy are being given herein below:- 3. A release application under Section 21 (1) (a) of the U.P. Act No. 13 of 1972 was filed by learned counsel for respondent against tenant petitioner for release of shop situated at Mohalla Guruhai, Qasba, Pergana and District Auraiya. 4. The landlord alleged that his two sons Mohd. Farukh and Mohd. Shaan were unmarried and he needed to set up Mohd. Shaan in the shop in question to run the business of motorcycle spare parts and repairing. A copy of the release application has been filed as Annexure - 3 to the writ petition. 5. A perusal of the Release Application shows that the landlord alleged that he had given the shop in question on rent at the rate of Rs. 150/- per month along with 9% of rent as water tax to the tenant petitioner through a written lease agreement dated 03.05.1993. Under the written agreement the tenancy was month to month. For sometime, the tenant paid the rent, but later on from July, 2007 onwards he stopped paying the rent. No water tax was paid by the tenant at all during this time. When, the landlord tried to approach the tenant for giving of arrears of rent the tenant misbehaved with him openly, and therefore, on 18.03.2008 he sent a legal notice to the tenant petitioner for giving arrears of rent and for determining the tenancy. The notice was received by the tenant but he did not send any reply to it nor did he vacate the premises in question. The landlord had two sons who were unemployed and one daughter of marriageable age. He wished to set up his younger son Mohd. Shaan in the shop to be vacated by the tenant for selling motorcycle spare parts and for repair of motorcycle. He did not wish to continue the tenancy of the petitioner or any other person in the shop in question any more. 6. He wished to set up his younger son Mohd. Shaan in the shop to be vacated by the tenant for selling motorcycle spare parts and for repair of motorcycle. He did not wish to continue the tenancy of the petitioner or any other person in the shop in question any more. 6. In paragraph - 13 of the said application there is a specific mention that in case the shop in question is directed to be vacated by the Prescribed Authority, he is ready to pay the compensation to the tenant too. 7. The tenant filed his written statement admitting that there was a relationship of landlord and tenant between him and Gulam Mohammad, the applicant. He alleged that there was no agreement to pay water tax as water tax was included in the rent of Rs. 150/- per month. It was alleged that the landlord had sufficient accommodation as besides one shop that landlord occupied himself and was running a tea stall therein, there was one shop which he had let out to one Arvind Dubey, the other shop was let out to the petitioner where he ran his business of general merchants. There were two other shops - there was one in which Mohd. Farukh, the elder son of the landlord, had set up his business of selling biscuits and cold drink and namkeen etc. and there was another shop which was lying vacant, which could be easily used for setting up the business of second son Mohd. Shaan. 8. It was alleged that the landlord stopped accepting the rent with malafide intention since the year 2000 and therefore, the tenant had to deposit the rent under Section 30 before the Civil Judge (Junior Division), Auraiya in Misc. Case No. 30 of 2000. Later on, when the landlord intimated to the tenant that he was facing great difficulty in getting the rent from the Court and was ready to take the rent again, the tenant started paying him the rent again at the enhanced rate of Rs. 175/- per month. In 2008 the landlord again stopped taking the rent although it was offered to him by the money order, and the tenant had deposited the same in Court under Section 30 of the Act in Misc. Case No. 9 of 2008. The rent up to date had been deposited in Court and the tenant was in default. 9. In 2008 the landlord again stopped taking the rent although it was offered to him by the money order, and the tenant had deposited the same in Court under Section 30 of the Act in Misc. Case No. 9 of 2008. The rent up to date had been deposited in Court and the tenant was in default. 9. It was further alleged that besides the shop in question where the tenant was running his small business of General Merchant, there was no other shop in his possession and if the shop in question is directed to be vacated, the tenant would face great hardship. It was alleged that the two sons of the landlord were not unemployed. It was also alleged that the shop in question was completely unsuitable for being used for setting up the business of motorcycle repairs and selling spare parts thereof as adjacent to the shop there was a three feet wide Nala and thereafter a road which was so busy that it was not possible to repair the motorcycles on it. It was also alleged that the tenant had tried to find out an alternative accommodation near the shop but none was available even on the readiness of the tenant to pay Rs. 500/- per month. 10. Oral statements of the landlord and his two sons and of the tenant petitioner were taken by the Prescribed Authority where more or less the same facts as were mentioned in the release application and the written statement were reiterated. 11. It was admitted by the landlord that he had also filed a release application against the other tenant Dr. Arvind Dubey for release of the other shop for setting up Mohd. Farukh, the elder son, in the business of selling general provisions. It was admitted by the landlord in his oral statement that the house in question was earlier owned by his father. After his death the landlord as well as his brother Saleem @ Munna had inherited the house jointly. Saleem @ Munna also had four shops in the same house on the Northern side, and the landlord had inherited the shops towards the West. 12. The tenant in his oral statement admitted that there was the relationship of landlord and tenant but disputed the liability to pay the water tax as according to him the same was included in the rent of Rs. 12. The tenant in his oral statement admitted that there was the relationship of landlord and tenant but disputed the liability to pay the water tax as according to him the same was included in the rent of Rs. 150/- per month later on increased to Rs. 175/- per month. He again alleged that there were at least two shops lying vacant with the landlord and there was no bona fide need and the shop in question was unsuitable to run the motorcycle repairing shop as it was situated near a three feet wide Nala/open drain. It was also alleged that besides the release application, a SCC suit was also filed by the landlord for arrears of rent and eviction which is pending, therefore the release application should not be heard during the pendency of the said SSC suit. 13. In the oral statement and the affidavit filed in support of the same it was alleged that earlier the shop in question was being occupied by one Sharif Ahmed since 1980 @ Rs. 100/- per month and Sharif Ahmed had given a copy of the rent receipt issued to him by Shri Gulam Mohammad dated 02.04.1993 which he was filing before the Prescribed Authority as Annexure - 1 to the affidavit. The tenant also filed photographs of the tea shop run by the landlord and alleged that adjacent to the landlord's shop was that of Mohd. Farukh, the elder son who was selling biscuits and namkeen and cold drink therein and was not unemployed as alleged. The copies of receipts of the rent being deposited in Misc. Case under Section 30 of the Rent Control Act were also filed. It was admitted by the tenant that the landlord as well as his brother Saleem @ Munna had inherited the house in question and had partitioned the shops and the house in such a manner that Munna had shops on the Southern side and Gulam Mohammad had the shops on the Northern side. It was alleged that in the four shops which came in the possession of Saleem @ Munna there were two tenants and in two shops Saleem @ Munna was himself doing the business. Copy of the tax assessment register of Nagar Palika was filed as Annexure - 14 to the affidavit. 14. It was alleged that in the four shops which came in the possession of Saleem @ Munna there were two tenants and in two shops Saleem @ Munna was himself doing the business. Copy of the tax assessment register of Nagar Palika was filed as Annexure - 14 to the affidavit. 14. It was also alleged that the landlord had sufficient rooms in the adjoining house which he could utilize for setting up independent business of his son and there was no need to get the shops in possession of the tenant vacated. 15. It has been submitted that not only the need of the landlord but also the comparative hardship was disputed by the tenant. During the course of hearing of the release application the petitioner tenant filed documentary evidence to show that the shop in question was a new shop constructed in 1993 by the landlord and was not amenable to the Rent Control Act. 16. It has been submitted that the Prescribed Authority wrongly allowed the release application of the landlord respondent observing that the shop in dispute was an old shop which was let out to one Sharif Ahamed as tenant since 1980. Thus, it was amenable to the provisions of the Rent Control Act and relationship of landlord and tenant had been accepted by the tenant. With regard to the bona fide need, on the basis of evidence the Prescribed Authority found both the sons of landlord being unemployed and no other accommodation being available to the landlord for setting up them in independent business. It was also observed that the landlord would suffer great hardship if despite owning two shops he was asked to take a shop on rent for setting up the business of his younger son. It was also observed that it was not appropriate for the tenant to dispute that the shop in question was unsuitable for running a motorcycle spare parts and repair shop, as it was the outlook of the landlord as to how he utilized the shop after it was vacated and it was not the tenant's right to suggest or advise the landlord as to how best he should manage his affairs. 17. 17. After the order passed by the Prescribed Authority dated 30.10.2014 directing the tenant to vacate the shop in question an appeal was filed wherein additional evidence was filed by the tenant by means of an application under Order 41 Rule 27 of Code of Civil Procedure to show that initially the shop was assessed in 1971-72 and 1975-1976 and thereafter in 1985-86 as Kotha Kachcha+ with annual rental value of Rs. 240/- only. In the year 1993-1994 up to 1997-98 the annual rental value of the shop in question was suddenly increased to Rs. 500/- and instead of Kotha Kachcha in the occupation of Saleem @ Munna and Gulam Mohammad sons of Peerbux, the names of five tenants were also shown. 18. The landlord respondent also filed an application under Order 41 Rule 27 (6) filing the copies of assessment register before the Appellate Court starting from 1971-1972 to 1975-1976 and 1976-1977 to 1985-1986. Another application under Order 41 Rule 27 C.P.C. was also filed by the tenant where the petitioner tenant filed statements of Gulam Mohammad landlord respondent in PA Case No. 3 of 2008 filed against the other tenant Dr. Arvind Dubey of adjoining shop to the petitioner's shop, where the landlord respondent had admitted that he had constructed the shop in year 1998. The petitioner also filed the judgment passed in PA Appeal No. 3 of 2014 arising out of PA Case No. 3 of 2008 where, in view of the admission of the landlord respondent, it was held by the appellate court that the provisions of the U.P. Act No. 13 of 1972 were not applicable on the shop which was newly constructed in the year 1998. 19. It has been submitted that the appellate court wrongly discarded the additional evidence filed by the petitioner tenant but only placed reliance on the copies of the Tax Assessment Register filed by the landlord respondent and rejected the appeal. 20. The learned counsel for petitioner tenant while arguing the case before this Court has submitted that when the Appellate Court rejected the appeal on 14.09.2017, the tenant approached this Court by filing Writ - A No. 48440 of 2017: Avadesh Kumar Gupta Vs. 20. The learned counsel for petitioner tenant while arguing the case before this Court has submitted that when the Appellate Court rejected the appeal on 14.09.2017, the tenant approached this Court by filing Writ - A No. 48440 of 2017: Avadesh Kumar Gupta Vs. Prescribed Authority and two others, where the Court disposed off the writ petition by remanding the matter back to the lower Appellate Court for deciding afresh in so far as the issue as to whether the U.P. Act No. 13 of 1972 is applicable or not was concerned. The order passed on 14.09.2017 by the Appellate Court i.e. the Additional District Judge, Auraiya was set aside and the matter was remanded to the lower Appellate Court to decide within a period two months with regard to the applicability of the U.P. Act No. 13 of 1972 to the shop in question. 21. It has been submitted that after the remand of the case by this Court on 15.11.2017 the Appellate Court again ignored the evidence led by the petitioner tenant and rejected the appeal by the order impugned dated 09.03.2018. Hence the need arose to file this writ petition. 22. During the course of argument Shri Manish Nigam has submitted that before the lower Appellate Court two grounds were raised by the petitioner tenant. Firstly that the shop in question was newly built i.e. after the cut off date of 26.04.1985 and therefore, the provisions of the U.P. Act No. 13 of 1972 were not applicable to it, and the release application deserved to be dismissed as not maintainable. Secondly, it was argued that even if the shop in question was an old construction and the provisions of the U.P. Act No. 13 of 1972 were applicable to it, since no valid tenancy was created by means of agreement between the landlord and tenant in view of the Sections 11, 12, 13, 14 and 16 of the U.P. Rent Control Act, the release application against an unauthorized occupant like the petitioner was not maintainable. 23. Shri Manish Nigam has referred to a judgment and order rendered by Coordinate Bench of this Court in Nand Lal Chaurasiya Vs. VIth Additional District Judge, Pratapgarh and others, 2003 6 AWC 5288. 24. Shri M.K. Nigam has also referred a judgment of the Supreme Court reported in : Jagmittar Sain Bhagat and others Vs. 23. Shri Manish Nigam has referred to a judgment and order rendered by Coordinate Bench of this Court in Nand Lal Chaurasiya Vs. VIth Additional District Judge, Pratapgarh and others, 2003 6 AWC 5288. 24. Shri M.K. Nigam has also referred a judgment of the Supreme Court reported in : Jagmittar Sain Bhagat and others Vs. Director, Health Services, (2013) 10 SCC 136 Haryana and others that the point of jurisdiction should first be considered by the Tribunal and jurisdiction cannot be conferred upon a Court or Tribunal by acquiescence, waiver or consent. Shri Nigam has tried to distinguish the judgment rendered by the Hon'ble Supreme Court in Nutan Kumar and others Vs. Second Additional District Judge and others reported in, (2002) 8 SCC 31 and has referred to the facts mentioned by the Full Bench of this Court in Nutan Kumar and others Vs. Second Additional District Judgereported in, (1993) 2 ARC 204, and also to a Division Bench judgment rendered by this Court in Geep Industrial Syndicate Limited Allahabad Vs. Rent Control and Eviction officer, Allahabad, (1982) 2 ARC 585, and to the judgment rendered by a three judges quorum in Nanakram Vs. Kundalrai, (1986) AIR SC 1194. It is his contention that under 1947 Act a contractual tenancy was countenanced and was permissible, but under the new Act there is no provision for recognizing a contractual tenancy. 25. Shri Vishnu Gupta appearing for the respondent landlord has relied upon the following decision of coordinate Benches of this Court, namely, Vinesh Chandra Trivedi Vs. VIIth Addl. District Judge, Rae Bareli, (2014) 102 AllLR 116; and Pramod Kumar and Ors. Vs. Shreyans Kumar Jain, (2016) 3 ADJ 475 which have reiterated the law as settled by the Supreme Court in Om Prakash Gupta Vs. Dig Vijendrapal Gupta, (1982) 2 SCC 61 . 26. Shri Vishnu Gupta has also referred to the findings of fact recorded by the Prescribed Authority as well as by the Appellate Authority with regard to the applicability of the Act on the basis of the assessment orders since 1976-1977 relating to the building in question having been filed by the landlord. 27. Having heard the learned counsel for the parties, this Court has considered the orders impugned. 27. Having heard the learned counsel for the parties, this Court has considered the orders impugned. The fact of the relationship of landlord and tenant and the rate of rent not being disputed, this Court finds that there was a written agreement dated 03.05.1993 between the petitioner tenant and the landlord respondent. The Prescribed Authority had given a finding of fact on the bona fide need of the landlord to set up his younger son Mohd. Shaan in independent business and the comparative hardship faced by the landlord being greater the release application was allowed. 28. The applicability of the Act of 1972 was not disputed in the pleadings before the Prescribed Authority. The plea was taken for the first time during the course of argument before this Court. The Prescribed Authority found that in the affidavit filed by the petitioner tenant before it he had accepted that before him there was another tenant by the name of Sharif Ahmed since 1980 at the monthly rent of Rs. 100/- per month. A copy of the rent receipt of Rs. 100/- per month issued to Sharif Ahamed was also filed by the petitioner tenant along with the affidavit. Thus, the Prescribed Authority observed that the shop in question was constructed before the cut off date of 26.04.1985. 29. It had also come on record that both the house as well as the shops situated therein had been inherited by Gulam Mohammad and his brother from their late father Peerbux. The finding of fact returned by the Prescribed Authority regarding the unemployment of the two sons of landlord and the finding of fact recorded by the Prescribed Authority regarding the shops being inherited along with the house by the two brothers from their late father, and Paper No. 47 C/26 being a copy of the Tax Assessment Register of Nagar Palika showing the house in question to be owned both by Gulam Mohammad and Munna @ Saleem, have not been disputed at any stage. 30. The judgment relating to the bona fide need of the landlord and comparative hardship cited by either side were considered in detail by the Prescribed Authority and also the fact that from the date of service of the legal notice on the tenant petitioner which notice was received by his son, no effort was made by the tenant to search an alternative accommodation. The Prescribed Authority came to the conclusion that the landlord would suffer greater hardship than the tenant if he is asked to take on rent a shop for setting up the business of his son. With regard to the pendency of the SCC suit filed by the landlord it has been observed by the Prescribed Authority that the said suit was only for the purpose of securing the arrears of rent, whereas the release application had been filed showing the bona fide need. The object of both the SCC suit and the Release Application being different, both could be considered simultaneously by the Courts of different jurisdiction. 31. At the Appellate stage the additional evidence filed by the tenant in the form of copies of Tax Assessment Register and the additional evidence filed by the landlord was considered. The Appellate Authority found that the initial tax assessment showed both the landlord and his brother Saleem @ Munna, sons of Peerbux, to be joint owners of the house in question. The brother of the landlord had two tenants by the name of Maqbool and Harbansh Singh, and landlord Gulam Mohammad had two tenants by the name of Dr. Arvind Kumar and other Avadhesh Kumar. The paper No. 47C/26 was filed by the tenant himself. The Appellate Court referred to the papers No. 7C/1 to 7C/3 which were copies of Tax Assessment Register for 1976-77, 1986-87, 1992-93 and 1997-98. The tax assessment being done in the year 1976-77 clearly showed that the construction was made before the cut off date of 1985. 32. The landlord Gulam Mohammed had also filed copies of Tax Assessment Register as Paper No. 23 C where tax assessment of the year 1971-72 up to 1975-76 was filed showing that the house in question was jointly owned by Munna and Gulam Mohammad sons of Peer Bux. The first assessment being done in the year 1971-72 up to 1976-77, the other assessment orders brought on record either by the tenant or even by the landlord became irrelevant for coming to this conclusion regarding applicability of the Act. The Appellate Court referred the judgment of this Court in Fasaluddin Vs. The first assessment being done in the year 1971-72 up to 1976-77, the other assessment orders brought on record either by the tenant or even by the landlord became irrelevant for coming to this conclusion regarding applicability of the Act. The Appellate Court referred the judgment of this Court in Fasaluddin Vs. 12th ADJ, Meerut, 2005 (2) ARC 729 where this Court has observed that for deciding the date of construction as provided under the Explanation - 1 to Section 2 (2) of the Act, oral evidence including the admission is not much relevant in the presence of House Tax Assessment as an assessment order is conclusive proof with regard to the date of construction. Even if the building is constructed and occupied prior to the house tax assessment, still it is the date on which the house tax was assessed for the first time, which would be the date of construction. Similar observations made by this Court in Surendra Nath Mishra (Dr.) Vs. Judge, Small Causes Court and others, 2014 (1) ARC 399 were also referred to where reliance was placed on a Supreme Court judgment reported in : Lalchand Vs. District Judge, Agra, (2000) AIR SC 141 to say that the assessment order is conclusive for arriving at the date of construction of a building. It was observed that since the construction was assessed for the first time in the year 1971-72 which was before the cut off date of 26.04.1985, the Act would be applicable. 33. Shri Manish Kumar Nigam has placed great reliance upon the observations made by this Court in Nand Lal Chaurasia Versus VIth Additional District Judge, Prataphgarh and others, 2003 (6) AWC 5288 (LB). A Coordinate Bench of this Court held that under Section 11 of the Act there is a specific prohibition for a person to live in a building covered by the Rent Control Act except in pursuance of any allotment order issued under Section 16 of the Act. Section 13 of the Act also mandates that where a landlord or a tenant ceases to occupy a building, or a part thereof, no person shall occupy, in any capacity whatsoever, the building otherwise than under the order of release under Section 16 of the Act. If a person occupies the building without an order of allotment, he shall be taken to be in unauthorized occupation of such building or part thereof. If a person occupies the building without an order of allotment, he shall be taken to be in unauthorized occupation of such building or part thereof. 34. This Court in Nand Lal Chaurasiya (supra) considered the Full Bench decision of this Court in Nutan Kumar Vs. Second Additional District and Sessions Judge, Banda reported in, (1993) 2 AWC 1090 but held that an agreement between landlord and tenant without an allotment order by the Rent Control and Eviction Officer was void and Release Application under Section 21 was not maintainable. The Release Application could be filed only against a tenant and not a person in unauthorized occupation. It noticed that the judgment by the Larger Bench of High Court was set aside by the Supreme Court in Nutan Kumar and others Vs. Second Additional District Judge, (2002) 8 SCC 31 , but at the same time it has observed that the Supreme Court was not considering whether the application under Section 21(1) of the Act of 1972 was maintainable or not. It distinguished on facts as mentioned in Nutan Kumar a suit for eviction, arrears of rent and damages for use and occupation which was filed before the Court of Judge, Small Causes after termination of tenancy under Section 106 of the Transfer of Property Act. It observed that since in Section 21 (1) (a) and (b) of the Act word 'tenant' and 'tenancy' have been used and under Section 11 of the Act no person can occupy a building without a valid allotment order, else he will be treated as an unauthorized occupant, then an unauthorised occupant cannot be said to be a tenant within the meaning of the Act. It held that the provisions of the Section 21 for release of the accommodation against such person who was not a tenant was not maintainable. 35. Shri Manish Kumar Nigam has also placed reliance upon the judgment rendered by the Division Bench of this Court in Geep Industrial Syndicate Vs. Rent Control and Eviction Officer, Allahabad reported in,1982 ARC 585 and has referred to paragraph - 19 thereof. The Division Bench referred to Sections 11 and 13 of the Act which imposes a prohibition or restriction against the letting without an allotment order and places restriction on occupation of the building without an allotment order. Rent Control and Eviction Officer, Allahabad reported in,1982 ARC 585 and has referred to paragraph - 19 thereof. The Division Bench referred to Sections 11 and 13 of the Act which imposes a prohibition or restriction against the letting without an allotment order and places restriction on occupation of the building without an allotment order. It observed that a conjoint reading of the Sections 11 and 13 meant that neither a landlord can let out the premises without an allotment order, nor any one can occupy it without such allotment order. It referred to the judgment rendered by a Full Bench of this Court in Udho Das Vs. Prem Prakash, 1962 ALJ 406 and the judgment rendered in Muralidhar Agrawal Vs. State of U.P., 1975 AllLJ 270 by the Supreme Court where it found that in view of the Full Bench decision in Udho Das that a lease made in violation of the provisions of Section 7 (2) of the U.P. Act of 1947, would be still valid between the parties and would create a relationship of landlord and tenant between them. 36. It was observed by the Division Bench in Geep Industrial Syndicate (supra) that the judgment rendered by the Full Bench of Three Judges in Udho Das Vs. Prem Prakash was overruled by the Full Bench of Five Judges of this Court in Abdul Hamid Vs. Mohammad Ishaq, 1974 AllLJ 676 (F.B.), but this case was not brought to the notice of the Supreme Court when it made observations in Muralidhar Agrawal Vs. State of U.P. It observed that since there is a prohibition imposed already on a person i.e. a landlord or a tenant in occupying a premises without consent of District Magistrate/Rent Control and Eviction Officer, such person occupying the premises would be only an unauthorized occupant and the Rent Control and Eviction Officer under Section 16 would be entitled to pass an order of allotment in favour of a third person, as such possession of unauthorized occupant is not recognized in law. It observed that Muralidhar Agrawal Vs. State of U.P. (supra) was considered by the Hon'ble Supreme Court on the basis of the U.P. Act No. 3 of 1947 when there was no prohibition for letting or occupying a building on the basis of contract arrived at between tenant and landlord which would be binding upon them. It observed that Muralidhar Agrawal Vs. State of U.P. (supra) was considered by the Hon'ble Supreme Court on the basis of the U.P. Act No. 3 of 1947 when there was no prohibition for letting or occupying a building on the basis of contract arrived at between tenant and landlord which would be binding upon them. However, this lacuna was now removed and in the U.P. Act No. 13 of 1972 there is a prohibition enacted under Sections 11 and 13. Thus, the District Magistrate could treat the building as vacant and evict the unauthorized occupant and ignore the contract arrived at between the landlord and tenant. 37. The learned counsel for the petitioner has placed reliance upon several observations made in Full Bench decision of this Court in Nutan Kumar and others Vs. Second Additional District Judge and others to the same effect where the Full Bench considered the two questions :- Whether the agreement or lease between landlord and tenant for letting and occupation of building in contravention of the provisions of Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is void?; Whether the said agreement is enforceable in law and a decree for ejectment of tenant can be passed in favour of landlord on the basis thereof? 38. After referring to several judgments including Udho Das, Muralidhar Agrawal, and Geep Industrial Syndicate and also other judgment of the Supreme Court and also the Full Bench decision in Abdul Hamid Vs. Mohd. Ishaq and the judgment of the Supreme Court in Nanak Ram Vs. Kundalrai, (1986) AIR SC 1194, it observed that the judgment rendered in Nanak Ram Vs. Kundalrai cannot be taken as a binding precedent and should be restricted to the questions which have been decided therein. It observed that the judgment rendered in Geep Industrial Syndicate by the Division Bench was good law and agreement between the landlord and tenant for letting out the occupation of a building in contravention of the provisions of the U.P. Act No. 13 of 1972, is void and that the said agreement being unenforceable in law no decree for eviction of the tenant can be passed in favour of the landlord on the basis thereof. 39. 39. Shri Manish Kumar Nigam has also argued that even if there were no pleadings on record regarding the release application being not maintainable, as the tenant had not come in occupation through a valid allotment order, still the question of jurisdiction of the Prescribed Authority could be raised at any stage and it was raised during the course of argument before the Prescribed Authority and also in the grounds of appeal and ought to have been considered. He has referred to Jagmittar Sain Bhagat and others Vs. Director, Health and Services, Haryana and others, (2013) 10 SCC 136 where the Supreme Court has observed that conferment of jurisdiction is a legislative function and it can neither be conferred with consent of the parties nor by a superior court. If the court passes a decree having no jurisdiction in the matter, it would amount to a nullity as it goes to the root of the matter. The Supreme Court has further observed that an issue as to the lack of jurisdiction can be raised at any stage of proceedings. The finding of a court or tribunal became irrelevant and unenforceable/in-executable once the Forum was found to have no jurisdiction. Similarly, if a court/tribunal inherently lacks jurisdiction, acquiescence of a party should not equally be permitted to perpetrate and perpetuate injustice defeating all legislative animation. The court cannot derive jurisdiction apart from the Statute. A decree without jurisdiction is a nullity. It is a coram non judice. 40. It has been submitted on the basis of the judgment rendered in Jagmittar Sain Bhagat and others (supra) that the Prescribed Authority as well as the Appellate Authority had no jurisdiction to entertain the release application as the petitioner was not a tenant under a valid tenancy created through impugned order. 41. Shri Vishnu Gupta, on the other hand, has relied upon the judgment rendered by the Supreme Court in Nanak Ram Vs. 41. Shri Vishnu Gupta, on the other hand, has relied upon the judgment rendered by the Supreme Court in Nanak Ram Vs. Kundalrai, (1986) AIR SC 1194 (supra) where the Supreme Court while considering the central provisions and Berar Letting of Houses and Rent Control Order, 1949 observed that it was not open to a tenant in a proceeding for permission to terminate the tenancy and for possession of premises to say that lease between the parties is void as it was entered in contravention of the provisions of the Rent Control Order which provided that the landlord shall not let or occupy the house except after giving due intimation of the vacancy to the Deputy Commissioner who may within 15 days from the date of receipt of intimation of vacancy order the landlord to let the vacant house to any person and thereupon, notwithstanding any agreement to the contrary the landlord is obliged to let out the house to such person and place him in the possession thereof. 42. The Supreme Court referred to Full Bench decision of the Allahabad High Court in Udho Das Vs. Prem Prakash, (1964) AIR Allahabad 1 and the judgment rendered by itself in Muralidhar Agrawal, AIR 1974 SC 1924 , which approved the position of law laid down in Udho Das by Allahabad High Court, and observed that a lease between the landlord and any person in violation of order of District Magistrate would still be a valid lease as between the parties thereto. It would not however be binding on the District Magistrate, and in case a vacancy of accommodation is reported, the District Magistrate could require such person who was in occupation of such accommodation without a valid order to show cause as to why he should not be evicted from it. The District Magistrate could then direct him to vacate the accommodation and could even use force to evict him in case he fails to do so. However, in between the parties i.e. the landlord and the person who entered into the accommodation, the conditions of the lease would be binding and either of them could not assail the terms of lease in a proceeding between them. 43. The Full Bench decision in Nutan Kumar and others (supra) was set aside by the Supreme Court in the case of Nutan Kumar and Ors. Vs. 43. The Full Bench decision in Nutan Kumar and others (supra) was set aside by the Supreme Court in the case of Nutan Kumar and Ors. Vs. IInd Additional District Judge and Ors., 2000 (8) SCC 31. The Supreme Court referred to its judgment in Nanak Ram Vs. Kundalrai and observed that Section 13 of the U.P. Act No. 13 of 1972 specifically provided that the person who occupies without an allotment order in his favour shall be deemed to be unauthorized occupant of such premises. As he is in unauthorized occupation, he is like a trespasser. A suit for ejectment of the trespasser to get back the possession could always be filed. Such suit would not be dependent on the contract/agreement between the parties and would thus not be hit by the principles of public policy. It was further observed that unless the Statute specifically provides that a contract contrary to the provisions of the Statute would be void, the contract would remain binding between the parties and could be enforced between the parties themselves. 44. The learned counsel for the respondents has placed reliance upon several judgments of Coordinate Benches of this Court which are as follows:- Smt. Protima Chatterji and others Vs. Special Judge/ADJ, Kanpur Nagar, (1992) 2 ARC 193; Brij Nandan Sahai Hajela Vs. Additional District Judge, (1996) 1 ARC 165 ; Thakur Prasad Madhesiya Vs. State of U.P. and another, (2011) 3 AWC 3002 ; Vinesh Chandra Triivedi Vs. 7th Additional District Judge, Raebareilly, 2014 (102) ARC 116; Pramod Kumar and others Vs. Shreyansh Kumar Jain, (2016) 3 ADJ 475 . 45. In Smt. Protima Chatterji and others Vs. Special Judge /A.D.J., Kanpur Nagar and others, (1992) 2 ARC 193 this Court was considering a case where it was not disputed that the petitioners were owner and landlord of the premises and that the respondent No. 2 was inducted in premises as a tenant by the petitioners and she has been paying rent to them. In the written statement filed by the respondent No. 2 she had admitted before the Prescribed Authority that the petitioners were landlords and she was tenant and that she has been throughout paying rent to them. In the written statement filed by the respondent No. 2 she had admitted before the Prescribed Authority that the petitioners were landlords and she was tenant and that she has been throughout paying rent to them. In that view of the matter a contract of tenancy between the landlord and the respondent No. 2 was binding inter-se and therefore, it was not open for her to contend that she was not tenant of the building but was in unauthorized occupancy thereof. The Court observed that it was a different matter that the building was let out without an allotment order and the possession of the respondent No. 2 as tenant may not be accepted by Rent Control and Eviction Officer, but so far as the respondent No. 2 was concerned, she could not contend that she is not the tenant of the building. Thus, the requirements of Section 21 of the Act for the relationship of landlord and tenant being in existence was met and the release application filed by the landlord against the respondent No. 2 was maintainable. 46. In Brij Nandan Sahai Hajela Vs. Third Additional District Judge, Shahjahanpur and others, (1996) 1 ARC 165 the petitioner tenant alleged that an application under Section 21 for release of the premises can be filed only against a tenant and since the petitioner was in unauthorized occupation and not a tenant the application would not be maintainable. The Court observed that when the landlord filed an application for release of the disputed premises with the allegation that the petitioner is a tenant and the petitioner had admitted in his written statement the relationship of landlord and tenant, he could not plead later on that he was an unauthorized occupant. Had he pleaded that he was an unauthorized occupant before the Prescribed Authority the accommodation could have been declared as vacant and on an application being filed under Section 16 (1) (b) it could have been released in his favour. Since the tenant has himself taken a stand that he is a tenant, the Prescribed Authority was justified in entertaining the application filed by the landlord under Section 21(1) (a) of the Act. 47. In Thakur Prasad Madhesiya Vs. State of U.P. and another, (2011) 3 AWC 3002 the judgment rendered in Nand Lal Chaurasia Vs. Since the tenant has himself taken a stand that he is a tenant, the Prescribed Authority was justified in entertaining the application filed by the landlord under Section 21(1) (a) of the Act. 47. In Thakur Prasad Madhesiya Vs. State of U.P. and another, (2011) 3 AWC 3002 the judgment rendered in Nand Lal Chaurasia Vs. VIth Additional District Judge, Pratapgarh and others, 2003 6 AWC 5288 was distinguished by this Court by referring to the judgment of the Supreme Court in Nanak Ram Vs. Kundalrai (supra) and also to the judgment rendered by this Court in Munna Lal Vs. Second Additional District Judge, (2008) 3 ARC 772 . The Court observed that a contract of tenancy was binding inter-se between the parties even if it was against the provisions of law/Rent Control Act and ejectment proceedings were maintainable. Reversal of Full Bench decision in Nutan Kumar (supra) by the Supreme Court has only reiterated the law that an agreement is binding in between landlord and tenant and release application under Section 21 of the Act could be filed on the grounds of genuine and pressing need of the landlord. 48. In Vinesh Chandra Triivedi Vs. VIIth Addl. Rae Bareli, 2013 (11) Laws(All) 39 this Court has relied upon the judgment of Supreme Court in Om Prakash Gupta Vs. Digvijendrapal Gupta, (1982) 2 SCC 61 to observe that if there is an assessment order, it will be the date of first assessment which will be taken as the date of completion of the construction and in that view of the matter the Act would become applicable. Similar observation has been made in Pramod Kumar and others (supra) where the case of the landlord was that the shop in question was a new shop which was reconstructed in the year 2000 along with other shops and all the shops were raised together from the ground level and a common lintel of four shops was put simultaneously and it was also claimed that tax on the new shop was assessed w.e.f. 01.10.2002 and that the first assessment of the other shop which was made on 01.04.1986 was not relevant and the Rent Control Act was not applicable. This Court referred the judgments of the Supreme Court in Ram Swarup Rai Vs. Smt. Leelawati, (1980) ARC 466 and Om Prakash Gupta Vs. This Court referred the judgments of the Supreme Court in Ram Swarup Rai Vs. Smt. Leelawati, (1980) ARC 466 and Om Prakash Gupta Vs. Digvijendrapal Gupta, (1982) 2 SCC 61 (FB) and observed that in case of a building subject to assessment, the date of first assessment would be relevant. The date of occupation of the building or the date of completion of construction which was not reported to the Municipal Authorities were irrelevant. If there is an assessment, it will be the date of first assessment which will be deemed to be the date of completion of construction. 49. In the instant case, the date of first assessment is shown as the year 1971-72 to 1975-76. The learned appellate court therefore came to the conclusion and rightfully so, that the shop in question was constructed much before the cut off date of 26.04.1985 and the U.P. Act No. 13 of 1972 was applicable. 50. This Court is aware that a defendant in a suit can take contradictory pleas in the alternative. Thus, the argument made by the petitioner tenant initially that the Rent Control Act of 1972 was inapplicable before the Prescribed Authority and the Appellate Court having not succeeded, it is open for the petitioner tenant to argue before this Court that even if the Rent Control Act, 1972 was indeed applicable, Sections 11 and 13 thereof prohibited the occupation of the premises without an allotment order from the Prescribed Authority and petitioner not being "tenant" inducted through a valid allotment order, he could not be proceeded against under Section 21 (1) (a) of the Act. However, this Court is sitting in writ jurisdiction under Article 226 of the Constitution of India. This Court cannot allow the petitioner to approbate and reprobate at the same time. He cannot be allowed to take advantage of the lease agreement entered into between the parties on 03.05.1993, to remain in continued occupation of the shop in question and at the same time now turn around and say that he was an unauthorized occupant and thus, the Release Application was not maintainable. 51. After the judgment rendered by the Supreme Court in Nutan Kumar and others Vs. IInd Additional District Judge and others, (2002) 8 SCC 31 the law has been settled in this regard. 51. After the judgment rendered by the Supreme Court in Nutan Kumar and others Vs. IInd Additional District Judge and others, (2002) 8 SCC 31 the law has been settled in this regard. Even if there was no valid allotment of the premises in question, the tenant and landlord would still be bound by the agreement entered into between them. Neither the tenant nor the landlord can be allowed to take advantage of their own wrong in not intimating the vacancy to the Prescribed Authority in time nor getting an allotment order issued in favour of the tenant. 52. In writ jurisdiction under Article 226 of the Constitution a writ of certiorari can be issued only for setting aside a patently illegal order. In this case the orders passed by the Prescribed Authority and by the Appellate Court do not suffer from any such defect. Hence, this writ petition is dismissed. 53. The petitioner has been in occupation of the shop in question since 1993 on a meagre rent of Rs. 150/- per month later on increased to Rs. 175/- per month. The shop admittedly is situated in a busy market place of the city area. This Court while entertaining the writ petition had directed the maintenance of status quo on the date of the order dated 15.05.2018. It is apparent that despite a release application being filed in the year 2010 by the landlord, the petitioner has remained in continued occupation and has avoided his eviction. Since the premises in question are covered by the Rent Control and Eviction Act the arrears of rent and damages for use and occupation of the shop can only be allowed at the rate of rent initially agreed upon between the parties which is Rs.175/- per month. The petitioner is directed to deposit the arrears of rent as well as damages at the rate of Rs. 175/- per month till the date of order of Prescribed Authority and also pay all dues of water tax in the learned Court below and submit an undertaking before the Additional District Judge, Fast Track Court at Auraiya to hand over vacant and peaceful possession of the shop in question to the landlord within a further period of one month. 175/- per month till the date of order of Prescribed Authority and also pay all dues of water tax in the learned Court below and submit an undertaking before the Additional District Judge, Fast Track Court at Auraiya to hand over vacant and peaceful possession of the shop in question to the landlord within a further period of one month. Since this Court has not interfered in the order impugned, with effect from the date of order of the Prescribed Authority till such time that vacant and peaceful possession of the shop in question is delivered, the tenant shall pay damages at the rate of Rs. 3,000/- per month to the landlord for use and occupation of the shop in question during the pendency of the litigation.