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2024 DIGILAW 820 (ALL)

Mayank Mittal v. District Judge/Rent Tribunal

2024-03-15

ASHUTOSH SRIVASTAVA

body2024
JUDGMENT : 1. Heard Sri Nipun Singh, learned counsel for the petitioner and Sri Sundeep Agarwal, learned counsel representing the plaintiff-respondent no. 3. 2. The learned Standing Counsel has accepted notice of the Writ Petition on behalf of the State-Respondents. 3. The instant Writ Petition at the instance of the Tenant/petitioner has been filed for quashing the order dated 11.03.2024 passed by the District Judge/Rent Tribunal, District Gautam Budh Nagar/Respondent no. 1, in Misc Case No. 58 of 2024 (Mayank Mittal Vs. Pooran Dev Adlakha (Deceased) and others) so far as it relates to the direction to deposit the pre-deposit 50% payable amount with the Rent Authority-Respondent no. 2 and file the receipt in the Appeal under Section 35 of the UP Act No. 16 of 2021 and only thereafter press the Appeal. 4. It is the case of the Writ Petitioner that he is a tenant of the Respondent no. 3. The Respondent no. 3 filed an Application u/s 21 (2) of the U.P. Regulation of Urban Premises Tenancy Act 2021 (U.P. Act No. 16 of 2021) before the Rent Authority/Additional District Magistrate (Finance and Revenue) District Gautam Budh Nagar seeking the eviction of the Petitioner as also for recovery of rent and damages. The application u/s 21 (2) registered as Case No. 72 of 2023 was allowed vide judgment and order dated 26.02.2024 by the Rent Authority directing eviction of the petitioner and further directing the petitioner to pay twice the rent of first two months after September, 2019 and thereafter to pay four times of rent and vacating the premises within 30 days. 5. The petitioner aggrieved by the judgment and order of the Rent Authority has preferred a Rent Appeal u/s 35 (1) of the U.P. Act No. 16 of 2021. Section 35 (1) of the U.P. Act No. 16 of 2021 contemplates pre-deposit of 50% of the entire payable amount under the impugned order of the Rent Authority, for the Appeal to be entertainable. 6. Learned counsel for the petitioner submits that the petitioner submitted the Appeal to the Rent Tribunal along with a Draft of Rs. Section 35 (1) of the U.P. Act No. 16 of 2021 contemplates pre-deposit of 50% of the entire payable amount under the impugned order of the Rent Authority, for the Appeal to be entertainable. 6. Learned counsel for the petitioner submits that the petitioner submitted the Appeal to the Rent Tribunal along with a Draft of Rs. 16,64,000/-(being 50% of the total amount payable as ordered by the Rent Authority under the order dated 26.02.2024 impugned in the Appeal) but the Rent Tribunal did not accept the Draft and passed the order dated 11.03.2024 (impugned in the present Writ Petition) to deposit the amount before the Rent Authority and file the receipt of the deposit so made along with the Appeal. The Rent Tribunal has not entertained the Appeal and no number has been allotted to it but the case has been registered as Misc. Case No. 58 of 2024. The petitioner has been directed to press the Appeal only after making the deposit before the Rent Authority and has fixed the Appeal for 02.04.2024. 7. Sri Nipun Singh, learned counsel for the petitioner submits that the Rent Tribunal has committed manifest error of law in refusing to accept the pre-deposit of 50% of the amount directed to be paid by the Rent Authority. He submits that the amount being a precondition for maintainability of the Appeal was required to be accepted by the Rent Tribunal. He has invited the attention of this Court to the provisions of Section 35 (1) of the Act as also to Rule 12 of the U.P. Regulation of Urban Premises Tenancy Rules 2021 to demonstrate that there is no provision as to where the amount of pre-deposit would be payable. He also submits that the Form-9 under which the Appeal is to be preferred also does not mention where the pre-deposit is to be made. It is further contended that the Rent Authority under the order dated 26.02.2024 sought to be assailed in the Appeal preferred before the Rent Tribunal had directed eviction of the petitioner within 30 days. The Rent Tribunal has fixed the Case on 02.04.2024 without hearing the Appeal. The Rent Authority has become functus-officio after passing the order dated 26.02.2024. If the amount is not accepted by the Rent Authority the petitioner would be evicted even without his Appeal being heard and it would be travesty of justice. The Rent Tribunal has fixed the Case on 02.04.2024 without hearing the Appeal. The Rent Authority has become functus-officio after passing the order dated 26.02.2024. If the amount is not accepted by the Rent Authority the petitioner would be evicted even without his Appeal being heard and it would be travesty of justice. It is thus prayed that appropriate directions be issued by this Court to the Rent Tribunal to accept the Demand Draft bearing No. 460797 dated 07.03.2024 or in the alternative prepone the date fixed by the Rent Tribunal and direct the Respondent No. 2 i.e. the Rent Authority to accept the pre-deposit and issue the receipt thereof so as to enable the petitioner to press his Appeal. 8. Sri Sundeep Agarwal, learned counsel for the Respondent No. 3 as also the learned Standing Counsel have submitted that the petitioner ought to have carried out the direction under the impugned order. They however could not justify the directions contained in the impugned order. 9. I have heard the learned counsels for the parties and have perused the record. I have also gone through the provisions of the Act and the Rules framed thereunder. It is not in dispute that Section 35 (1) of the Act, Rule 12 of the Rules as also the Form-9 which is referable to Rule 12 (1) of the Rules is silent about before whom the pre-deposit of the 50% of the total payable amount as directed by the Rent Authority is to be made. However a perusal of the provisions of Section 35 (1) of the U.P. Act No. 16 of 2021 under which the Appeal is to be instituted the legislature in its wisdom has used the expression "no appeal shall lie" in the proviso to the section 35 (1). The relevant provision is being quoted herewith : 35. Appeal to Rent Tribunal-(1) "Any person aggrieved by an order passed by the Rent Authority may prefer an appeal along with a certified copy of such order to the Rent Tribunal within the local limits of which the premises is situated, within a period of thirty days from the date of that order: Provided that no appeal shall lie unless the appellant pre-deposits fifty percent of the entire payable amount under the impugned order of the Rent Authority." 10. In the opinion of the Court the inclusion of the expression "no appeal shall lie" necessarily means that the Appeal could not be conceived in the absence of a pre-deposit. Since the Appeal itself could not be conceived the Rent Tribunal has no role to play. This necessarily implies that the pre-deposit is required to be deposited with the Rent Authority whose order is sought to be appealed against. 11. In this view of the matter the impugned direction to make the deposit before the Rent Authority and file the receipt thereof along with the Memo of the Appeal cannot be faulted. 12. In the opinion of the Court, there is one other aspect of the matter. The Court on the perusal of the Rule 6 of the U.P. Regulation of Urban Premises Tenancy Rules 2021 finds that the Rule provides a elaborate mechanism for accepting deposit of Rent and other charges referable to Section 14 of the Act, 2021. Sub Rule 2 of Rule 6 provides that such deposits can be made by postal money order or on account payee Cheque or by any digital mode in the name of the Rent Authority, which amount is to be deposited by the Rent Authority in a Saving Bank account opened by it in any of the Nationalized Bank with due approval of the Collector of the District and the Rent Authority has been made solely responsible for the proper and safe maintenance of such account and the transactions therein. In the opinion of the Court, the said mechanism can very well be utilized for the purposes of accepting the pre-deposits for maintaining appeals before the Rent Tribunal. 13. In view of the above the Court finds no illegality or irregularity in the impugned order dated 11.03.2024 directing the pre-deposit of 50% payable amount with the Rent Authority/Respondent No. 2 and file receipt in the Appeal u/s 35 of the Act 2021 and only thereafter press the Appeal warranting interference of this Court under Article 226 of the Constitution of India. 14. The Writ Petition lacks merit and is accordingly dismissed. 15. 14. The Writ Petition lacks merit and is accordingly dismissed. 15. However the Court finds that the Rent Tribunal has fixed 02.04.2024 as the date fixed for consideration of the Appeal which falls beyond 30 days of the order of the Rent Authority and there is every likelihood of the order of the Rent Authority being executed, under Section 36, even before the Appeal is heard. In such circumstances the petitioner is granted liberty to make the pre-deposit of 50% of the total amount payable by the Demand Draft No. 460797 dated 07.03.2024 obtain the receipt thereof and file an application seeking to prepone the date fixed by filing an appropriate application in that regard. In the eventuality of such an application being made the learned District Judge/Rent Tribunal Gautam Budh Nagar shall prepone the date and proceed to entertain and hear the Appeal on merits.