Allahabad High Court
Ramakant And 7 Others vs M/S Jagat Estate And 2 Others on 18 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 1074
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 52 Case :- MATTERS UNDER ARTICLE 227 No. - 8961 of 2019 Petitioner :- Ramakant And 7 Others Respondent :- M/S Jagat Estate And 2 Others Counsel for Petitioner :- Dinesh Pathak,Rakesh Pathak Counsel for Respondent :- Saurabh Srivastava Hon'ble Neeraj Tiwari,J.
Heard Sri Rakesh Pathak, learned counsel for the petitioners and Sri P.K. Jain, learned Senior Counsel assisted by Sri Saurabh Srivastava, learned counsel for the respondents.
Learned counsel for the petitioners submitted that the petitioners are original tenants of the property in dispute and tenancy was declared on 10.12.2009 in which release application was filed by respondent no. 1. Thereafter release application was allowed by Rent Control and Eviction Officer/City Magistrate, Kanpur Nagar vide order dated 27.5.2011 releasing the accommodation in favour of the respondent no. 1. He further submitted that the petitioners have not been served with the notice under Rule 8 readwith Rule 9 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rule, 1972 (hereinafter referred to as Rule 1972), therefore, they have moved review application dated 31.5.2011 to review the order dated 27.5.2011 by which release application was allowed. He next submitted that during pendency of review application, the respondent no. 1 filed an application under Section 16(4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as U.P. Act No. 13 of 1972) for execution of the order dated 27.5.2011 in which the petitioners have filed objections under Section 47 C.P.C. which was rejected vide order dated 23.2.2018. Against the said order, petitioners preferred two revisions bearing Nos. 6 of 2018 and 7 of 2018, which were allowed by Additional District Judge, Court No. 1, Kanpur Nagar vide order dated 20.3.2018 with direction to decide the review application pending before the court. The review application of the petitioners was rejected by the City Magistrate/Rent Control and Eviction Officer, Kanpur Nagar vide order dated 16.8.2019, against which the petitioners have again preferred Rent Revision No. 21 of 2019, which was also dismissed vide impugned order dated 7.11.2019.
Learned counsel for the petitioners is assailing the impugned order dated 7.11.2019 basically on the ground that first of all, the land is Nazul land and it is not free hold, therefore, the respondent no. 1 cannot move release application. He next submitted that the petitioners have placed several documents before the Review Court, but without considering the documents, the revision has been dismissed on the ground that Panchshala is not an authentic document, therefore, the impugned order is bad in law and liable to be set aside.
Sri P.K. Jain, learned Senior Counsel assisted by Sri Saurabh Srivastava, learned counsel for the respondents has produced original copy of Panchshala issued on 5.9.2018 which is taken on record. He submitted that the present proceeding is not maintainable and vacancy order dated 10.12.2009 has rightly been passed and further in Panchshala, it has been mentioned that the petitioners are sub tenant. He further submitted that earlier the main tenant M/s Bhartiya Antar Rastriya Byapari Pvt. Ltd. has filed Writ-A No. 16175 of 2015, which was dismissed by this Court vide order dated 22.5.2015. Thereafter, another sub-tenant M/s Gram Udyog Mandal, Kanpur Nagar also filed Writ-A No. 11117 of 2019, which was also dismissed by this Court vide order dated 23.7.2019 clearly holding that vacancy order dated 10.12.2009 and order dated 27.5.2011 releasing the accommodation in favour of the respondent no. 1 have attained finality. He next submitted that the petitioners are sub tenant of sub tenant, therefore, they are having no right to maintain any proceeding against the respondent no. 2. He next submitted that the petitioners are only domestic servant of earlier owner of Sri Brijendra Swaroop, Advocate and they were never the tenant. In support of tenancy, they have not annexed any document either at the stage of review or revision. Only document produced by petitioners is the Panchshala of Nagar Nigam, Kanpur Nagar from 68 to 72 in which their names have been recorded as sub tenant. Apart from that, he submitted that Panchshala is not an authentic and absolute document, therefore, on the basis of Panchshala, no tenancy right can be decided. Apart from question of maintainability of writ petition, it is submitted that the writ petition lacks merit and liable to be dismissed. He has placed reliance upon a judgment of Apex Court in the case of Suresh Chandra Jain Vs. IIIrd Additional District Judge, Mathura and others, Allahabad Rent Cases, 1999 (1).
He next submitted that so far as contention of learned counsel for the petitioners is that the land in question is Nazul land, even though sub-tenant has no right to raise any such objection.
Being confronted by the Court, learned counsel for the petitioners could not demonstrate any document other than Panchshala in support of his tenancy. Neither he could produce any law nor authority of any court to demonstrate that only on the basis of Panchshala, tenancy right can be considered and decided.
I have considered the rival submissions made by the learned counsel for the parties and perused the judgment and order dated 16.8.2019 passed by Review Court. There is clear cut finding of the Review Court that on the basis of Panchshala of Nagar Nigam, Kanpur Nagar, tenancy cannot be considered and further petitioners could not produce any direct or indirect evidence of tenancy, even no such affidavit has been filed claiming tenancy right before the court below. No receipt of rent has ever been produced before the courts below and Panchshala cannot be only an evidence for tenancy. It is also finding of the court below that all the petitioners are sub tenant or servant of original tenant i.e. M/s Bhartiya Antar Rastriya Byapari Pvt. Ltd. The original tenant M/s Bhartiya Antar Rastriya Byapari Pvt. Ltd. has filed Writ-A No. 16175 of 2015, which was dismissed by this Court vide order dated 22.5.2015. Another sub-tenant M/s Gram Udyog Mandal, Kanpur Nagar also filed Writ-A No. 11117 of 2019, which was also dismissed by this Court vide order dated 23.7.2019 with specific finding that the vacancy order dated 10.12.2009 and the order dated 27.5.2011 releasing the accommodation in favour of Respondentno. 1-M/s Jagat Estate, has attained finality. The entire effort of the petitioner is, therefore, intended for abuse of process of court by filing the aforesaid objection. Not only this, one more writ petition was also filed by M/s Gram Uddyog Mandal, Kanpur Nagar being Matters Under Article 227 No. 10188 of 2019, which was also dismissed by this Court vide order dated 6.1.2020.
The Apex Court in the matter of Suresh Chandra Jain (supra) has taken the view that once the decree for ejectment against main tenant attained finality, the sub-tenant did not have any independent right or to raise any objection before the Executing Court. Paragraph 6 of the said judgment is quoted below:-
"6. We have heard learned Counsel for the respondents and we find the argument raised is well substantiated. From the facts narrated above, it is clear that so far as the tenant Sardar Pritam Singh was concerned, the decree for ejectment against him attained finality. The sub-tenant did not have any independent right or to raise any objection before the Executing Court. The sub-tenants were legally bound by the orders passed against the main tenant particularly when the ejectment decree against the main tenant became final and his objection before the Executing Court was rejected by the Additional District Judge and upheld by the High Court. Further we find that the sub-tenant in their objection have not pleaded any right independent to the rights of main tenant. They merely reiterated the objections of the main tenant, namely, that the ejectment decree passed by the Small Causes Court is nullity and that they were not parties to eviction suit. Under such circumstances the High Court was not right in allowing the writ petition filed by the sub-tenants. We, accordingly set aside the order and judgment of the High Court dated 17.4.1997 and restore that of the Additional District Judge, Mathura dated 17.2.1986. The appeal is allowed but there will be no order as to cost."
The question of Nazul land is also having no force once it is established that the petitioners are only sub-tenant having no tenancy right.
By perusal of the record, specially Panchshala annexed alongwith writ petition as well as certified copy of the same produced by learned counsel for the respondents, it is clear that names of the petitioners are endorsed as sub tenants, who are having no right of tenancy and further in light of provisions of U.P. Act No. 13 of 1972), coupled with the fact that undisputedly the petitioners could not produce any document in support of tenancy either before the courts below or before this Court. I find no illegality in the impugned order dated 7.11.2019 passed by Additional District Judge, Court No. 1, Kanpur Nagar. The writ petition lacks merit and is accordingly dismissed.
No order as to costs Order Date :- 18.1.2020 Rmk.