Allahabad High Court
Sumit Narain Tiwari vs The Additional District Judge And 2 Ors. on 16 September, 2019
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR (Judgment reserved on 18.07.2019) (Judgment delivered on 16.09.2019) Court No. - 05 Case :- MATTERS UNDER ARTICLE 227 No. - 7566 of 2018 Petitioner :- Sumit Narain Tiwari Respondent :- The Additional District Judge And 2 Ors. Counsel for Petitioner :- Udayan Nandan Counsel for Respondent :- Rajendra Singh,Abhishek Kumar Saroj,Atul Dayal,Sanjay Kumar Srivastava Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Udayan Nandan, learned counsel for the defendant-petitioner, Sri Atul Dayal, learned Senior Advocate assisted by Sri Sanjay Kumar Srivastava and Sri P.N. Saxena, learned Senior Advocate for plaintiff-respondent Nos. 2 and 3.
Facts:-
2. Briefly stated facts of the present case are that original owner and landlord of the disputed House No. 13/80, Parmat, Kanpur Nagar, was Sri Badri Das. The plaintiff-respondent no.3 is the adopted son of the aforesaid original owner. A registered adoption deed dated 22.11.1946 was executed by the original owner Sri Badri Das for adoption of the plaintiff-respondent no.3, Radhey Shyam Bagariya. Subsequently, the original owner Badri Das also executed a registered Will deed dated 10.11.1951.
3. Much prior to the year 1962 one Sri Dhani Ram Gupta alias Brahmanand was the original tenant of the plaintiff-respondent no.3. Sometime in the year 1962, he permitted Roop Narayan Tiwari (Grand father of the petitioner-defendant) to use the disputed premises. The original tenant filed Suit No.2426 of 1965 (Brahmanand v. Roop Narayan) for ejectment of the aforesaid Roop Narayan Tiwari alleging him to be his lisensee and for recovery of mesneprofit. In this suit the plaintiff-respondent no.3 was not a party. This suit was dismissed by the court of IIIrd Additional Munsif, Kanpur by judgment dated 11.12.1968, holding that the defendant Roop Narayan Tiwari was a sub tenant and not a licensee. Subsequently, the plaintiff no.1/respondent no.3 through his power of attorney Sri Surajbhan Bagariya filed a Suit No.2055 of 1972 for ejectment of the original tenant Dhani Ram Gupta. The plaint was returned by the court by order dated 31.1.1976 for presentation before a proper court.
4. Subsequently, the original tenant Dhani Ram Gupta died. According to the plaintiff respondent no.3, the tenancy was succeeded by Krishnanand, son of the original tenant Dhani Ram Gupta. The plaintiff-respondent no.3 filed Original Suit No.378 of 1990 (Radhey Shyam Bagariya v. Krishnanand and Roop Narayan Tiwari) praying for a decree of eviction from the suit property and for recovery of rent of Rs.660/- and damages of Rs.50/- per month and a decree for recovery of pendentelite @ Rs.20/-. The ejectment was sought on the grounds that rent is in arrears since 1.7.1970, subletting to the defendant no.2/petitioner without permission and consent of the plaintiff, death of the defendant no.2 without leaving any legal heir and material structural changes made by the tenant-defendant no.1 Krishnanand in the disputed property by opening a new door on western wall and constructing a tin shed which diminished the value of the property and disfigured it.
5. It appears that the defendant no.2 Roop Narayan Tiwari died during pendency of the suit. The defendant-petitioner was substituted, who claims to be the Grand son of Sri Roop Narayan Tiwari. The evidences were led by the parties. During pendency of the suit the plaintiff-respondent no.3 sold the disputed property to the plaintiff-respondent no.2 Sri Ashwani Kumar Tripathi, who was made plaintiff no.2.
6. The S.C.C. Suit No.378 of 1990 (Radhey Shyam and another v. Krishnanand and another) was dismissed by judgment dated 15.12.2011 passed by the IInd Additional Judge Small Cause Court, Kanpur Nagar, who recorded findings that there is no landlord-tenant relationship between the plaintiff and the defendant (Issue No.1), the defendant no.2/petitioner is the tenant by operation of law i.e. Section 14 of U.P. Act 13 of 1972 amended by U.P. Act 28 of 1976 (Issue No.2), no rent is in arrear (Issue No.3), no structural changes were made in the suit property (Issue No.4), notice dated 7.4.1990 was sent to the tenant Dhani Ram Gupta, no notice was sent by the plaintiff-defendant no.2. Therefore, by the aforesaid notice it cannot the said that the tenancy was determined by the plaintiff-landlord (Issue No.5), non compliance of the provisions of Section 20(4) of U.P. Act 13 of 1972 would not arise in view of the decision on Issue No.1 that no landlord-tenant relationship was established between the plaintiff and the defendant no.2 and, therefore, the plaintiff is not entitled to any relief (Issue No.8).
7. Aggrieved with this judgment, the plaintiff-respondent filed S.C.C. Revision No.3 of 2012 (Ashwani Kumar Tripathi and another v. Krishnanand and another), which has been allowed by the impugned judgment dated 22.1.2015 passed by the Additional District Judge (Court No.8), Kanpur Nagar reversing the findings recorded by the Small Cause Court which were adverse to the plaintiff-respondent. The revision was allowed and the suit was decreed.
Submissions:-
8. Sri Udayan Nandan, learned counsel for the defendant-petitioner submits as under:
(i) The petitioner was a sub-tenant since the year 1962 and he became a tenant by operation of law under Section 14 of U.P. Act 13 of 1972, therefore, his tenancy stood regularised by Section 14 of the Act.
(ii) the defendant-petitioner offered to pay rent to the plaintiff-respondent, but the rent was not accepted by him. Therefore, he continued to pay it to the original tenant Dhani Ram Gupta. Thus, there was no default in payment of rent.
(iii) The petitioner-defendant was made sub-tenant with the implied consent of the plaintiff-respondent no.3.
(iv) In any case, the petitioner may be a tenant in arrears of rent, but sine the defendant-petitioner had deposited the rent under Section 20(4) of the U.P. Act 13 of 1972, therefore, it cannot be said that the petitioner-defendant was in arrears of rent. Reliance is placed upon the judgments of this Court in Rajendra Nath Tewari and another v. The III Addl. District Judge, Allahabad and others, 1981 ARC 271 ( Paragraph Nos. 9,10,11 and 13), Ghanshyam Das v. Smt. Asha Devi and another, 2007(68) ALR 274 (Paragraph-7), Jhaboo Lal (Dead) through L.Rs. v. District Judge, Dehradun and others, 1999(1) AWC 319 ( Paragraph Nos. 10,12 and 13) and Kripa Ram v. The V- Additional District Judge, Meerut and others, 1976 AWC 528 (Paragraph Nos.8 and 9).
(v) In the additional written statement the petitioner-defendant has not denied title of the plaintiff-respondent, but merely stated that the plaintiff is not the only owner of the house. Badri Das (original owner) had only one issue, i.e., Smt. Godavri (daughter). Plaintiff was never adopted by Sri Badri Das. The plaintiff stated that his father Badri Das executed a registered will dated 10.11.1951 in his favour and, therefore, he is the owner of the suit property by virtue of the will. Therefore, there was no denial of title by the defendant-petitioner. But the revisional court committed a manifest error of law to set aside the judgment and allowed the revision and decreed the suit on the ground of denial of title by the defendant-tenant. Reliance is placed on the judgment of this Court in Hari Shankar v. Om Prakash (since deceased ) and others, 2017(123) ALR 90 (Paragraph Nos. 3,12 and 13).
9. After the arguments were concluded by learned counsel for defendant-petitioner on 17.07.2019, he was directed to specifically point out from the pleadings, the specific dates and evidences for payment of rent to the original tenant Sri Dhani Ram Gupta, offering of rent to the plaintiff-respondent No.3 and his denial and direction to pay it to Sri Dhani Ram Gupta. He was also directed to point out the evidences which were led by him by the defendant-petitioner in support of these points and also the evidences in support of the arguments noted above.
10. In response to the queries made by this Court as noted in the order dated 17.07.2019, Sri Udayan Nandan, learned counsel for the defendant-petitioner submits, as under:
(i) Neither any specific date was mentioned in the pleadings nor evidences were led by the defendant-petitioner on the points mentioned in para (9) of the order dated 17.07.2019.
(ii) The defendant-petitioner was sub-tenant and he became tenant by operation of law under Section 14 of U.P. Act 13 of 1972. Therefore, at best, the defendant-petitioner may be a tenant in default of rents. Under the circumstances, the defendant-petitioner was entitled for the benefit of Section 20(4) of the U.P. Act 13 of 1972.
11. Sri P.N. Saxena and Sri Atul Dayal, both learned senior advocates for the plaintiffs-respondents submit, as under:
(i) Section 14 of U.P. Act 13 of 1972 is applicable only to a licensee or a tenant in occupation of a building with the consent of a landlord immediately before the commencement of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976. It does not apply to a sub-tenant. As per own case, the defendant-petitioner was a sub-tenant. Therefore, Section 14 of the Act shall not apply to him. Reliance is placed on the judgments of this Court in Chunno Vs. Dilip Kumar Singhal, 2018 (2) ARC 125 (Para-13), Gopal Ji vs. VIth Additional District Judge, Varanasi and others, 2006 (1) ARC 250, Angad Ram vs. Rent Control and Eviction Officer IInd, Allahabad and another, 2003 (1) ARC 248 (Para-7), Datta Ram and another vs. IIIrd A.D.J., 2010 (3) ARC 373 (Para-6), Bimal Kishore Paliwal vs. IVth Additional District and Sessions Judge, Muzaffarnagar, 2005 (2) ARC 672 (Para-15), Dharam Dass Dutta vs. VIIIth Additional District Judge, Varanasi and others, 1992 (1) ARC 89 (Para-14, 15 and 16), Amar Nath Sharma (since deceased) vs. IIIrd Additional District Judge, Bulandshahar and others, 2009 (2) ARC 55 (paras-11 and 12), Gopal Ji son of Raja Ram, Proprietor Firm Gopalji Narendra Kumar vs. VIth Additional District Judge, 2007 (1) ARC 773 (Para-10), Hardeo Upadhyaya vs. Dr. Laeeq Ahmad and others, 1979 ARC 290 (Para-9), Vishnu Prasad vs. Ist Additional District Judge and others, 1983 (2) ARC 397 (Para-9), Prahlad Kumar vs. Siddhnath and others, 2013 (1) ARC 666 (Paras-14 and 15), in which this court has consistently held that a sub-tenant shall not be covered by Section 14 and that there should be a specific consent of the landlord for sub-tenancy.
(ii) Scope of Section 14 is quite limited. It shall apply only to a licensee and only to such tenant to whom landlord has let out a building without allotment order before July, 1976. Only these situations are covered by Section 14 and only in these circumstances, the tenancy shall stand regularised.
(iii) The judgments in the case of Kripa Ram (supra) and Rajendra Nath Tiwari (supra) relied by learned counsel for defendant-petitioner are the only judgments in which it has been observed that a sub-tenant shall also be entitled to the benefit of Section 14 of U.P. Act 13 of 1972. These two judgments are of the year 1975 and 1980. Subsequent to these two judgments, large number of judgments have been rendered by this court during last 39 years in which consistent view has been taken that Section 14 shall not apply to a sub-tenant.
(iv) Neither there was any consent by the plaintiffs-respondents nor any such consent can be presumed impliedly nor the law permits any implied consent. The consent for the purposes of Section 14 of the Act, should be a specific consent in writing. There was neither specific consent nor implied consent. Reliance is placed on the judgment of this court in G. Ahmad vs. D.J. Kanpur and others, 2012 (2) ARC 732 (Paras-14 and 15).
(v) The judgment in the case of Ghanshyam Das (supra) relied by learned counsel for the defendant-petitioner with regard to implied consent, has no application on the facts and circumstances of the case inasmuch as in the present set of facts, the plaintiffs-respondents have never given any consent either expressed or impliedly. That apart, the question of any consent does not arise at all, inasmuch as the plaintiffs-respondents had filed O.S. No.2055 of 1972 for eviction of the original tenant Dhani Ram Gupta and the plaint was subsequently returned on 31.01.1976 for presentation before an appropriate court. While returning the plaint, the court observed that since the question of licence is involved, therefore, it should be presented before the appropriate court. This itself shows that the plaintiffs-respondents have never given any consent for sub-tenancy of the defendant-petitioner. The case of the defendant-petitioner is that he was paying rent to the original tenant/ tenant-in-chief but there is no evidence that the defendant-petitioner has either paid or tried to pay any rent to the plaintiffs-respondents which also shows that there was no consent of the plaintiffs-respondents for sub-tenancy of the defendant-petitioner.
(vi) The original tenant as well as the defendant-petitioner both have denied the title of the respondents. Therefore, denial of title of the plaintiffs-respondents (landlord) itself a sufficient ground for eviction. The act of the defendant-petitioner to deny the title of the plaintiffs-respondents (landlord) despite there being clear evidence of ownership and landlord-ship of the disputed property, is non-bona fide and the consequence would be eviction. Reliance is placed on the judgment of Hon'ble Supreme Court in Keshar Bai vs. Chunnulal, (2014) 11 SCC 438 (Paras-14, 15 and 16).
(vii) The defendant-petitioner has taken conflicting stands. On the one hand, he claims himself to be the sub-tenant of the plaintiffs-respondents and on the other hand, he denied the title. Once he denied the title no benefit of deposit under Section 20(4) of U.P. Act 13 of 1972, was available to him in view of the law laid down by this Court in Church City Junior High School Shiksha Samiti, Sadar, Meerut and another vs. Sri Mahendra Kumar Jain and others, 2005 (2) ARC 729 (Para-3).
(viii) Even otherwise the benefit of Section 20(4) of U.P. Act 13 of 1972 cannot be extended to the defendant-petitioner under the facts and circumstances of the present case in view of the specific provision of Section 20(4) of the Act, which provides for unconditional payment or tender of the arrears of rent by their tenant. Reliance is placed upon the judgment of Lalta Prasad vs. IInd A.D.J., Kanpur Nagar and others, 1982 ARC 703 (Para-7).
12. In rejoinder Sri Udayan Nandan, learned counsel for defendant-petitioner submits as under:
(i) The provisions of Section 20(4) shall not only apply to a tenant but it shall apply to a sub-tenant also, who has become tenant by operation of law, i.e. Section 14 of the Act.
(ii) The conduct of the plaintiffs-respondents including the conduct of not filing any suit after the plaint of Suit No.2055 of 1972 was returned and the fact that since 1976 till 1990 no suit was filed, itself shows implied consent of the plaintiffs-respondents for the sub-tenancy or tenancy of the defendant-petitioner.
Discussion and Findings:
13. I have carefully considered the submissions of the learned counsels for the parties.
Questions:-
14. The submissions made by learned counsels for the parties, give rise to the following questions for determination in this petition:-
(a) Whether under the facts and circumstances of the case, the defendant-petitioner became a tenant by operation of law under Section 14 of the U.P. Act No.13 of 1972?
(b) Whether Section 14 of the U.P. Act No.13 of 1972, applies to a sub-tenant?
(c) Whether under the facts and circumstances of the case, the defendant-petitioner is entitled for the benefit of Section 20(4) of the U.P. Act No.13 of 1972?
(d) Whether under the facts and circumstances of the case, denial of title of the landlord by the defendant-petitioner on one hand and claim of benefit of Section 20(4) of U.P. Act No.13 of 1972 on the other hand, can co-exist?
Question No.(a) Whether under the facts and circumstances of the case, the defendant-petitioner became a tenant by operation of law under Section 14 of the U.P. Act No.13 of 1972?
AND Question No.(b) Whether Section 14 of the U.P. Act No.13 of 1972, applies to a sub-tenant?
15. Admittedly, disputed House No.13/80, Parmat, Kanpur Nagar was originally owned by Sri Badri Das who inducted one Sri Dhani Ram Gupta @ Brahaanand as tenant. The original owner Badri Das was succeeded by his adopted son Radhey Shyam Bagariya. Thus, plaintiff-respondent No.3 is the owner and the landlord of the disputed house of which one Sri Dhani Ram Gupta @ Brahmanand was the tenant. The landlord- plaintiff/respondent No.3 never inducted the defendant-petitioner as tenant of the disputed house. The case set up by the defendant-tenant/ petitioner in paragraph-12 of his written statement is that his grand-father Roop Narayan Tiwari was a sub-tenant of the disputed house and he was paying rent to the original tenant Dhani Ram Gupta @ Brahmanand. In Suit No.2426 of 1965 (Brahmanand vs. Roop Narayan), decided by the court of IIIrd Additional Munsif, Kanpur by judgment dated 11.12.1968, it was held that Roop Narayan Tiwari was a sub-tenant and not a licensee. Thus, according to the own case of the defendant-petitioner, Sri Roop Narayan Tiwari was the sub-tenant of the disputed house since the year 1962 and after the death of Roop Narayan Tiwari, he became the sub-tenant and by operation of Section 14 of the U.P. Act 13 of 1972, he became the tenant.
16. Section 2-A and Section 14 of the U.P. Act 13 of 1972 are the relevant provisions for the purposes of the afore-noted two questions, therefore, both the provisions are reproduced below:
"Section 2-A. Special provisions for short term licence.--(1) Notwithstanding anything contained in this Act, a person occupying a building as owner or as tenant or in any other capacity (hereinafter in this section referred to as licensor) may permit any other person (hereinafter in this section referred to as licensee) to occupy for purely temporary residential accommodation for a period not exceeding three months without any order of allotment under Section 16.
Provided that intimation of the grant of such licence shall be given Jointly by the licensor and the licensee to the District Magistrate within one month from the date of occupation of the building or part by the licensee :
Provided further that the District Magistrate may by order, extend the maximum period of such temporary occupation up to 6 months in the aggregate (including the original period of occupation) :
Provided also that similar licence shall not be granted again to any other person in respect of the same building or part within a period of one year from the date of vacation of the building or part by the last licensee.
(2) Such licensee shall not be deemed to be a tenant for purposes of Section 20, notwithstanding that he pays or is liable to pay rent for such occupation.
(3) Such licensor shall not be deemed to have ceased to occupy such building or part within the meaning of Section 12 merely on the ground of having granted such licence.
(4) The District Magistrate shall not make an allotment under Section 16 in respect of the building or part vacated by the licensee except with the consent of the landlord.
(5) If the licensee omits or refuses to vacate the building or part after the expiry of the period of licence the licensor may make an application to the prescribed authority for his eviction and the prescribed authority shall thereupon order his eviction, and its order shall be final :
Provided that no order shall be made under this sub-section except after giving to the parties concerned a reasonable opportunity of being heard.
(6) The provisions of Section 23 shall apply to an order made under sub-section (5) as if it were an order made under Section 21 or under Section 22."
Section 14. Regularisation or occupation of existing tenants.--Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2-A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any Court or authority on the date of such commencement shall be deemed to be an authorized licensee or tenant of such building."
17. Thus, as per provisions of Section 14 of the U.P. Act 13 of 1972, any licensee (within the meaning of Section 2-A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction are pending before any Court or authority on the date of such commencement shall be deemed to be an authorized licensee or tenant of such building. The licensee has been dealt within Section 2-A of the U.P. Act 13 of 1972 to mean a person occupying a building as owner or as tenant or in any other capacity, may permit any other person as licensee to occupy for purely temporary residential accommodation for a period not exceeding three months without any order of allotment under Section 16 and such licensee shall not be deemed to be a tenant for purposes of Section 20, notwithstanding that he pays or is liable to pay rent for such occupation. The crucial words used in Section 14 of the Act are "licensee who is in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976". In Suit No.2426 of 1965 (Brahmanand vs. Roop Narayan), filed by the original tenant against Sri Roop Narayan (grand-father of the defendant-petitioner), it was held by the court of IIIrd Additional Munsif, Kanpur by judgment dated 11.12.1968 that Roop Naryan Tiwari was not a licensee but a sub-tenant. In the said suit, the plaintiff-respondent No.3 was not a party. The said judgment dated 11.12.1968 has attained finality. Thus, the position of the defendant-petitioner is not of a licensee but he was kept as a sub-tenant in the disputed house by the original tenant Dhani Ram Gupta @ Brahmanand.
18. The protection of Section 14 of the Act is available only to a licensee and not to a sub-tenant. The defendant-petitioner, according to his own case; is a sub-tenant and not a licensee. Therefore, he cannot be deemed to be a tenant of the disputed building under Section 14 of the Act.
19. Sub-Section (1) of Section 25 of the U.P. Act 13 of 1972 prohibits sub-letting but sub-Section (2) provides that the tenant may, with the permission in writing of the landlord and of the District Magistrate, sub-let a part of the building. Crucial words used in Sub-Section (2) of Section 25 of the Act for sub-letting are the "written permission of the landlord" to sub-let a part of the building. No evidence could be led by the defendant-petitioner that the landlord-plaintiff/ respondent No.3 or his father, i.e. the original owner Sri Badri Das, ever gave any permission in writing for sub-letting. Section 20(2)(e) provides a ground for eviction of a tenant who has sub-let whole or any part of the building in contravention of the provisions of Section 25 of the U.P. Act 13 of 1972. Therefore, the sub-letting by the original tenant to the grand-father of the defendant-petitioner is a ground for eviction available to the landlord-plaintiff/ respondent No.3.
20. From the facts and evidences on record, it is evident that the defendant-petitioner has completely failed to establish that there was express or implied consent of the landlord for sub-letting in his favour or in favour of his grand-father. No particulars could be disclosed by the defendant-petitioner despite direction of this court in para-9 of the order dated 17.07.2019 requiring him to point out from the pleadings and evidences the specific dates and evidences for payment of rent to the tenant Dhani Ram Gupta or offering of rent to the plaintiff/ respondent No.3 and its denial by the plaintiff/ respondent No.3 and a direction to pay it to the original tenant Dhani Ram Gupta. No evidence could be led by the defendant-petitioner that there was any express or implied consent of the landlord-plaintiff/ respondent No.3 for sub-tenancy.
21. This court has consistently held that sub-tenant shall not be covered by Section 14 of the U.P. Act 13 of 1972. It has also been settled that there should be a specific consent of the landlord for sub-tenancy. Reference in this regard may be had to the judgments of this court in Chunno Vs. Dilip Kumar Singhal, 2018 (2) ARC 125 (Para-13), Gopal Ji vs. VIth Additional District Judge, Varanasi and others, 2006 (1) ARC 250, Angad Ram vs. Rent Control and Eviction Officer IInd, Allahabad and another, 2003 (1) ARC 248 (Para-7), Datta Ram and another vs. IIIrd A.D.J., 2010 (3) ARC 373 (Para-6), Bimal Kishore Paliwal vs. IVth Additional District and Sessions Judge, Muzaffarnagar, 2005 (2) ARC 672 (Para-15), Dharam Dass Dutta vs. VIIIth Additional District Judge, Varanasi and others, 1992 (1) ARC 89 (Para-14, 15 and 16), Amar Nath Sharma (since deceased) vs. IIIrd Additional District Judge, Bulandshahar and others, 2009 (2) ARC 55 (paras-11 and 12), Gopal Ji son of Raja Ram, Proprietor Firm Gopalji Narendra Kumar vs. VIth Additional District Judge, 2007 (1) ARC 773 (Para-10), Hardeo Upadhyaya vs. Dr. Laeeq Ahmad and others, 1979 ARC 290 (Para-9), Vishnu Prasad vs. Ist Additional District Judge and others, 1983 (2) ARC 397 (Para-9), Prahlad Kumar vs. Siddhnath and others, 2013 (1) ARC 666 (Paras-14 and 15).
22. In the case of Prahlad Kumar (supra), this court relied upon the judgment of Hon'ble Supreme Court in Bhagwan Das & another vs. Rent Control and Eviction Officer/SDO, Sambhal, Moradabad and others, (2006) 2 ARC 737, and held in paragraph-15 as under:
"Considering the judgments of the Apex Court, this Court in (2006) 2 ARC 737 ( Bhagwan Das & another vs. Rent Control and Eviction Officer/SDO, Sambhal, Moradabad and others) has held that even though the landlord was aware of the fact that since 1974 the subtenant was inducted, this will not make any difference. The subtenancy, be the part or whole of the tenanted accommodation cannot be regularised under Section 14 of the Act, even if landlord is aware of the same. If a stranger is inducted as tenant without written permission of the landlord, vacancy comes into existence and tenancy of new firm cannot be regularised under Section 14 of the Act."
23. In the case of Bimal Kishore Paliwal (supra), this court held in paragraph-15, as under:
"In the present case the rent has been admittedly paid in the name of Om Prakash the main tenant. The landlord has denied any consent to the occupation of Jagdish Prasad. Jagdish Prasad had never paid any rent in his own name. Even if it may be taken that the landlord had knowledge of occupation by Jagdish Prasad, still Jagdish Prasad cannot be held to be entitled to benefit of Section 14 of 1972 Act, in the absence of any specific consent of the landlord. Therefore, to take advantage of Section 14 of the act is has to be necessarily established firstly that the occupation is from before 5.7.1976 and secondly there was specific consent of the landlord. Mere knowledge of the landlord is not sufficient."
24. In the case of Angad Ram (supra), this court again considered the provisions of Section 14 and held in para-7 as under:
"From the above words, it will be noticed that regularization of occupation is only for the persons who were either occupying building as tenant or as licensee. No other occupation is regularized under Section 14 aforesaid. Licensee obviously means license of the landlord under Section 2-A of the Act."
25. The judgment in Ghanshyam Das (Paragraph-7) (supra), relied by learned counsel for defendant-petitioner, is not applicable on the facts of the present case inasmuch as in that case, it was found as a matter of fact that the rent was accepted by the landlord from the tenant in occupation of the shop without an allotment order and, therefore, it was held that there was consent of the landlord. The judgment in the case of Rajendra Nath Tewari and another (para-9) (supra), relied by the learned counsel for the defendant-petitioner is of no help to him inasmuch as in the said judgment, it was specifically held that "the only requirement both under the predecessor Act (U.P. Act No.III of 1947) and the present Act (U.P. Act XIII of 1972), was or is that a written permission of the District Magistrate was necessary. In that case (Para-10 and 11), it was found as a matter of fact that the sub-tenants were in occupation of the building under tenancy on the relevant date with the consent of the landlord. In the present set of facts, there was no consent of the landlord. The judgment in the case of Kripa Ram (supra) relied by learned counsel for the defendant-petitioner is also of no help inasmuch as in that case, the authority has found the possession of Kripa Ram to be with the consent of the previous landlord.
26. For all the reasons afore-stated, I have no difficulty to hold that the defendant-petitioner is not tenant under Section 14 of the U.P. Act 13 of 1972. Section 14 does not apply to a sub-tenant. Question Nos.(a) and (b) are answered accordingly.
Question No.(c) Whether under the facts and circumstances of the case, the defendant-petitioner is entitled for the benefit of Section 20(4) of the U.P. Act No.13 of 1972?
AND Question No.(d) Whether under the facts and circumstances of the case, denial of title of the landlord by the defendant-petitioner on the one hand and claim of benefit of Section 20(4) of U.P. Act No.13 of 1972 on the other hand, can co-exist?
27. As per provision of Section 20(2)(e) read with Section 25 of the U.P. Act 13 of 1972, sub-tenancy itself is a ground for eviction. The findings recorded by the court below in the impugned judgment on the grounds taken by the landlord-plaintiff/ respondent No.3 are based on consideration of relevant evidences on record. Therefore, these findings of fact cannot be interfered with in jurisdiction under Article 227 of the Constitution of India.
28. The benefit of Section 20(4) of the Act is available to a tenant and not to a sub-tenant. The deposit under Section 20(4) of the Act is required to be made by tenant unconditionally. Relying upon the judgment of Hon'ble Supreme Court in Ghoorey Lal vs. Sheo Murti Gupta and another, 1995 (2) ARC 4, this court in the case of Church City Junior High School Shiksha Samiti, sadar Meerut vs. Sri Mahendra Kumar Jain and others, 2005 (2) ARC 729 (Para-2 and 3), held that in the event of denial of title of the landlord by the tenant would amount that the deposit is conditional deposit which cannot confer any benefit of the protection of Section 20(4) of the Act to the tenant. In the present set of facts, the petitioner is not tenant but has claimed himself to be sub-tenant. Therefore, the benefit of Section 20(4) is not available to the defendant-petitioner. That apart, he has denied the title of the landlord and conditionally made the deposit. Therefore, for this additional reason also, the defendant-petitioner was not entitled for the benefit of Section 20(4) of the Act.
29. In Lalta Prasad vs. IInd A.D.J., Kanpur Nagar and others, 1982 ARC 703 (Para-7), this court held that the provisions of Section 20(4) of U.P. Act 13 of 1972, is not applicable where the petitioner is not a tenant of the accommodation in dispute. The benefit of Section 20(4) can be taken only by a tenant and not by a sub-tenant.
30. In Hari Shankar v. Om Prakash (since deceased ) and others, 2017(123) ALR 90, this court relied upon the judgment of Sheela and others Vs. Firm Prahlad Rai Prem Prakash, 2002 (47) ALR 415 (SC), and held that a tenant bona fide calling upon the landlord to prove his ownership or putting the landlord to proof of his title so as to protect himself or to earn a protection in law without disowning his character of possession over the tenancy premises as tenant, cannot be said to have denied the title of landlord. In the present set of facts, the petitioner himself has not set up case as a tenant but alleged that he is a sub-tenant. Therefore, the benefit of Section 20(4) of the Act was rightly held to be not available to the petitioner. Denial of landlord's title and claim of benefit of Section 20(4) of the Act, cannot co-exist. Question Nos.(b) and (c) are answered accordingly.
31. The findings recorded by the court below in the impugned judgment that the defendant-petitioner has denied the title of the landlord-plaintiff/ respondent No.3 and made conditional deposit and, therefore, the benefit of Section 20(4) is not available to him, is a finding of fact based on consideration of relevant evidences on record, which cannot be interfered with in jurisdiction under Article 227 of the Constitution of India.
32. For all the reasons afore-stated, I do not find any merit in this petition. Consequently, the petition fails and is hereby dismissed.
Order Date :- 16.09.2019 NLY