Allahabad High Court
Ram Shankar Yadav vs Xvth Additional District Judge And Ors. on 9 May, 2002
Equivalent citations: 2002(3)AWC2500
Author: A.K. Yog
Bench: A.K. Yog
JUDGMENT A.K. Yog, J.
1. Heard learned counsel for the parties.
2. Petition is heard finally at the admission stage. The amendment application No. 27528 of 2001, filed on 26/27.3.2001 on behalf of petitioner. Is not pressed and it is rejected as such.
3. Respondent Nos. 1 and 2 are redundant parties.
4. Respondent No. 3. Smt. Shakuntala Devi, is represented by counsel and also filed counter-affidavit.
5. Present petition arises out of the proceedings initiated on the basis of application for allotment under U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U. P. Act No. XIII of 1972 (for short called 'the Act') with respect to non-residential building shop No. 80, Pardevanpur. N-2 Road. Lal Bangla, Kanpur Nagar (called 'the shop') informing vacancy and seeking allotment of the same after rejecting release application filed by the landlord-respondent No. 3, Smt. Shakuntala Devi.
6. Petitioner Ram Shanker Yadav contended that he was the tenant of the shop at the rate of Rs. 300 per month but no rent receipts were issued by the landlord.
7. The Rent Control Inspector submitted a report stating thai the shop was in possession of the petitioner Ram Shanker Yadav son of Sheo Ram Yadav, who was running a printing press, the shop was let out in the year 1991 at the rate of Rs, 300 per month and rent was deposited under Section 30(1) of the Act. The landlord also submitted reply against the aforesaid report admitting that Ram Shanker Yadav was tenant of the shop who was inducted as licensee.
8. On the report dated 30th June, 1999, the concerned Rent Control and Eviction Officer under Section 16 of the Act, proceeded with the matter and declared vacancy vide order dated 6.1.2000. The Rent Control and Eviction Officer found that provisions of the Act were applicable to the shop in question, the tenant was unauthorised occupant being in possession without an allotment order and the shop in question was legally vacant (Annexure-1 to the writ petition).
9. The Rent Control and Eviction Officer, however, rejected the release application filed by the landlord dated 1,3.2000.
10. The landlord filed rent revision No. 25 of 2000 against aforementioned order dated 1.3.2000, the said revision was allowed and the case was remanded to the concerned Rent Control and Eviction Officer for reconsidering the matter as to when landlord had opted for allot ling accommodation to the present petitioner in breach of statutory provision of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U. P. Act No. XIII of 1972 (for short called 'the Act').
11. Feeling aggrieved, the petitioner Ram Shanker Yadav, the unauthorised occupant has filed the present writ petition under Article 226, Constitution of India, praying for issuing a writ order or direction in the nature of certiorari to quash the impugned order dated 7.7.2000 passed by respondent No. 1/XVth Additional District Judge, Kanpur Nagar, revisional authority appointed under the Act, copy of which has been filed as Annexure-6 to the writ petition and judgment and order dated 6.1.2000 declaring vacancy (Annexure-1 to the writ petition).
12. The contesting landlord respondent has filed counter-affidavit, sworn by Smt. Shakuntala Devi.
13. Perused the impugned judgment and orders dated 7.7.2000 and 6.1.2000 referred to above, as well as the contents of the counter-affidavit.
14. in the counter-affidavit, there is no averment that the provisions of the Act are not applicable to the shop in question. Perusal of paragraph Nos. 3, 5, 7, 10, 14 and 17 goes to show that the landlord admits the possession of the petitioner without there being a allotment order in favour of the petitioner. There is no specific denial that the tenant-petitioner, agreed to pay rent. Specific averments in para 3 of the petition to the effect ".....that the petitioner in the ground floor a shop accommodation at premises 80. Pardevanpur, N-2 Road Lal Bangla. Kanpur Nagar after paying the rent Rs. 300 per month. No rent receipts have been issued to the petitioner."
15. The aforesaid para has been replied in para 5 of the counter-affidavit which recites ".....the petitioner got the possession of the disputed shop as licensee and his licence was already terminated but he was occupying the said shop without the consent of the deponent".
16. The averments contained in para 5 of the counter-affidavit are vague to the extent it does not disclose as to how and in what matter licence was determined. No time or date has been given nor copy of the alleged notice terminating the licence have been filed. Besides the above, the Act does not permit induction of a licensee also except with the provisions of the Act which requires specific orders from the concerned District Magistrate/ Delegated Authority. It is nobody's case that any such licence, that too for short term permissible under law was ever applied or obtained.
17. In view of the admitted facts, the judgment and order dated 6.1.2000 (Annexure-1 to the writ petition) whereby the concerned Rent Control and Eviction Officer declared vacancy with respect to the shop in question cannot be interfered with and the petition must fail to that extent.
18. As far as the relief claimed for quashing of the impugned judgment and order dated 7.7.2000 (Annexure-3 to the writ petition) is concerned, (his Court has already held that where 'landlord' is 'abettor' and 'guilty' of committing breach of provisions of the Act. Inducts a person. as licensee/tenant in flagrant violation of the provisions of the Act and fails to notify the vacancy or intimate his nominee as completed under the Act, then such a person disentitles himself from seeking release inasmuch as he is estopped by his conduct in asking for release of the accommodation since he has himself allowed another person to occupy the said accommodation.
19. The landlord, who is guilty of acting in breach of the provisions of the Act cannot be permitted to reap/enjoy the premium out of his illegal action and he stands at the same footing as the unauthorised occupant.
20. It is a growing practice, that a building to which provisions of the Act are applicable, is let out by a landlord, proclaiming 'landlord tenant' contract, charge heavy rent taking advantage of shortage of accommodation : exploit the paucity of accommodation and helplessness of a person who succumbs to the circumstances beyond his control takes possession as tenant ignoring the Act.
21. After sometime, when such a person refuse to give way to the pressure tactics of enhancing rent, the landlord himself gets an allotment application moved through his own man and thus by proxy gets initiated proceedings for declaration of vacancy and consequently, keeping prospective allottees out of the field to contest it. It is thus interesting to note that accommodation is got declared vacant, at the instance of an unscrupulous landlord under Section 16 of the Act, (wherein the matter is purely between the concerned authority and the landlord where no third person is allowed to intervene) and seek release of the accommodation. The unscrupulous landlord, thus, hoodwinks the provisions of the Act by not intimating the vacancy (though required under law) ; lets out the accommodation by charging higher rent, exploits the needy by denying them the protection of the Act, subsequently gets the allotment application filed by proxy through his own man, gets the accommodation declared vacant ; jumps over the fray by filing release application wherein he had a upper hand since the release matter under Section 16 of the Act happened to be between him and the authority and no prospective allottee as such, is entitled under law to intervene in the matter.
22. In view of it. this Court in the case Jagdish v. District Judge. Kanpur Nagar and Ors., 2002 (1) AWC 766 : 2002 (1) ARC 32? : Rafat Ahmad Jamal Alvi v. Rent Control and Eviction Officer. Allahabad and Ors. 2002 (2) AWC 893 : 2002 (1) ARC 410, and judgment and order dated 9.5.2002, in Writ Petition Wo. 55 of 2000. R. N. Sehgal v. District Judge. Kanpur Nagar and Ors., had taken a view that in a case where landlord had illegally let out, shall not be entitled for consideration of his release application and the concerned Rent Control and Eviction Officer/ Delegated Authority under Section 16 of the Act should proceed to consider allotment application/s in accordance with law after notifying vacancy, by publishing in two newspapers (one Hindi and one English) having wide circulation in the concerned city/town.
23. In some cases on behalf of such unscrupulous landlord, it can be argued that when he had illegally let out the accommodation, in breach of the provisions of the Act, he may not have bona fide required the accommodation for personal need but by passage of time when accommodation is declared vacant, he may need the accommodation bona fide under the changed circumstances. If that be so, once accommodation is allotted to a tenant as held by this Court in the above decisions, it shall be open for such a landlord to file an application under Section 21 of the Act and he shall not be prevented from seeking release in accordance with law. The unscrupulous landlord must be relegated to the position when the accommodation had initially fallen vacant and allotted if he had discharged his statutory obligation of intimating the vacancy to the concerned Rent Control Authority.
24. At this juncture, 1 deem it appropriate to deal with another aspect, namely, the landlord shall suffer immensely if he has to file a suit on regular side in civil court for eviction and/or recovery of arrears of rent against such a tenant (treated as unauthorised occupant in the eye of law) and will have to pay ad valorem Court fee on the market value of the building in question.
25. Such ah apprehension is misconceived inasmuch as the induction of a tenant in breach of provision of law will make the contract of tenancy, vis-a-vis third person void but in no case permit parties to a contract to resile from their stand-namely relationship of landlord and tenant. Henee, neither such a landlord or a tenant (even though allowed to occupy in breach of the provisions of the Act) can be permitted to plea otherwise and shall be estopped from pleading in his defence that he is not the 'tenant'.
26. The above view taken by me is fully supported by view taken by the Apex Court in the case of Antony v. K. C. Ittoop & Sons and Ors., AIR 2000 SC 226. The relevant extract of paras 9 and 10 are reproduced :
"9. In M/s. Technicians Studio Private Limited v. Smt. Lila Ghosh. (1977) SC 2425. the same question came to be determined by a Bench of two learned Judges of this Court. There, under a compromise decree, the appellant became tenant of the suit property for a period 16 years on agreed monthly rent of Rs. 1,000. However, neither any registered lease deed was executed nor was the memo of compromise registered. During the said period of the lease, the suit property devolved upon the respondent. On the expiry of the said period of lease, the respondent filed the suit for recovery of possession of the suit property after serving a notice to quit on the appellant. In the suit, the plea set up by the appellant was that by payment of the agreed rent during the period of 16 years a monthly tenancy was created in its favour and though no payment of rent was made thereafter, the monthly tenancy continued even after the expiry of the said lease period. The trial court found that the lease was void as the compromise was not registered and that the payment and acceptance of rent in terms of the unregistered compromise did not give rise to a right of tenancy. Accordingly, the suit was decreed. The first appellate court and the High Court confirmed the decree of the trial court. On appeal to this Court, it was observed, inter alia, that after the compromise decree the possession of the appellant, in order to be valid, must be referable to the compromise. Negativing the contention of the appellant that Ram Kumar Das v. Jagdish Chandra Deb Dhabal Deb. 1952 SCR 269 : AIR 1952 SC 23. is an authority for the proposition that in every case where a person enters into possession on the strength of an invalid lease and the landlord accepts the rent in terms of that invalid lease, a monthly tenancy is created by implication of law. It was held that the monthly payment brought the appellant under the coverage of Section 53A of the Transfer of Property Act but from that fact it was not possible to conclude that tenancy was brought into existence. It was. however, pointed out that it was possible to find on the facts of a given case that payments, made by transferee in possession under an invalid lease, were really nol in terms of the contract but independent of it. and that might justify an inference of tenancy in his favour.
10. The question is ultimately one of fact and has to be determined in each case."
27. Consequently, even if the landlord has let out the accommodation in breach of the provisions of the Act, he can file a suit for eviction/arrears of rent before the Court of Judge Small Causes under Provincial Small Cause Court Act against his tenant (though an unauthorised occupant for others) particularly, when in such a case, defendant is estopped by his conduct and not be permitted to take up the defence that he is not the tenant vis-a-vis the plaintiff is admitted landlord and hence suit will be cognizable by Judge Small Causes under Provincial Small Causes Court Act. Nonetheless. Rent Control and Eviction Officer shall have jurisdiction to allot it under Section 16 of the Act.
28. It is. therefore, clear that in case landlord and tenant relationship created in breach of the provisions of the Rent Act can be ignored as being void by the Rent Control Authorities and third parties but such landlord and tenant shall remain bound by their conduct and due to the fact that this acquiesced to the contract of Tenancy.
29. In the result, the impugned order dated 7.7.2000 (Annexure-3 to the writ petition) passed by respondent No. 1 /XVth Additional District Judge, Kanpur Nagar in Rent Revision No. 26 of 2000. Smt. Shakuntala Devi v. Additional City Magistrate, IIIrd Rent Control and Eviction Officer, Kanpur, is set aside and the judgment and orders dated 6.1.2000 and 1.3.2000 passed by Rent Control and Eviction Officer, Kanpur Nagar (Annexures-1 and 2 to the writ petition) are affirmed. The Rent Control and Eviction Officer is directed to notify/declare the vacancy in accordance with the Act/Rules and as the directions given by this Court in the case of Jagdish (supra), and proceed with the allotment of the building in question.
30. Writ petition stands partly allowed as indicated above. It is dismissed with respect to the relief asking for quashing of the orders dated 6.1.2000 and 1.3.2000 (Annexures-1 and 2 to the writ petition) declaring vacancy and rejecting landlord's application for release.
31. No order as to costs.