Allahabad High Court
Narendra Singh Son Of Late Sardar Havela ... vs Surendra Nath Dinger Son Of Late Vishnu ... on 26 April, 2006
Equivalent citations: 2006(4)AWC4179
Author: Rakesh Sharma
Bench: Rakesh Sharma
JUDGMENT Rakesh Sharma, J.
1. The afore-mentioned writ petitions were heard and dismissed in open Court today for reasons to be recorded later on. My reasons for dismissing these writ petitions are as follows.
2. Heard Sri Amitabh Misra, learned Counsel for the petitioner-tenant and Sri Anil Kumar, learned Counsel for respondent-landlord..
3. In this landlord-tenant dispute, the petitioner claiming himself to be a tenant, has challenged the order dated 17.10.2003 passed by the prescribed authority rejecting the application of the respondent and declaring vacancy in respect of House No. 45, Khurshed Bagh, P.S Naka Hindola, city Lucknow (hereinafter referred to as the premises). The first floor of the premises has been released in favour of Surendra Nath Dinger, the landlord respondent.
4. It has emerged from record that the premises was initially owned by one Sri Vishnu Swaroop Dinger. He had executed a registered will-deed on 17.11.1984 and in pursuance of the said Will, the respondent Surendra Nath Dinger became the absolute owner, landlord of the first floor of the premises. His younger brother Sri Narendra Nath Dinger became the absolute owner of the ground floor of the said_ building. The first floor of the premises is a residential accommodation comprising four rooms, kitchen, latrine, bath-room and verandah. One Sri Amar Singh Sethi was inducted as tenant in the first floor of the said premises. Later on he shifted to his own house No. 288/l15 at Arya Nagar. Luckncw with his family members, where he has been and is residing.
5. The petitioner has claimed himself to be a member of Amar Singh Sethi's family. As per petitioner, he is elder brother of Amar Singh Sethi and had been living in the first floor of the premises alongwith the family of Sri Sethi. Sri Amitabh Misra, learned Counsel for the petitioner has stressed that the petitioner is a family member of Sri Amar Singh Sethi and while shifting to his house at Arya Nagar, Sri Sethi had left the petitioner to continue in the premises as joint tenant. The petitioner Narendra Singh thus became a tenant of the said premises. He has also submitted that the petitioner was paying rent to the landlord and was recognized as a legal valid tenant.
6. The record further reveals that the premises in question was deemed vacant under Section 12 of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. XIII of 1972), hereinafter referred to as the Act, and as such the landlord moved a release application under Section 16(l)(b) of the Act on 28.1.1992. In the said release application, the landlord had stated that Sri Vishnu Swaroop Dinger, father of the present landlord, had let out the premises in question to Sri Amar Singh Sethi on a monthly rent of Rs. 300/- per month. In the said application, it was highlighted that the tenant, namely, Amar Singh Sethi had acquired a house at Ram Nagar Misra Nagar Colony (Indira Nagar), Lucknow. Sri Sethi later on built a new house i.e. house No. 288/115 at Arya Nagar, Lucknow. It was indicated in the release application that Amar Singh Sethi had vacated the premises and handed over its vacant possession in 1989 to Sri Narendra Singh, the petitioner. According to the landlord Vishnu Swaroop Dinger, the petitioner Narendra Singh was not a family member of the outgoing tenant Sri Amar Singh Sethi. The Rent Control Inspector inspected the premises in question, verified the facts and submitted his report to the trial court on 19.2.1992. He had taken the statement of petitioner Narendra Singh that he was living in the premises since February, 1966 with his younger brother Sri Amar Singh Sethi. The petitioner has admitted in his statement that his brother had constructed his own house No. 288/1 15 in Mohalla Arya Nagar, Lucknow and he shifted to that house. Although the petitioner Narendra Singh told the Rent Control Inspector that he had remitted the rent through money-order which was returned back but no receipts, money-order receipts etc were placed by him before the prescribed authority or this Court to demonstrate that he actually paid any rent to the landlord.
7. The petitioner contested the release application in the trial court. He filed his objections stating therein that he was a sitting tenant in the premises since 1966. The landlord made his submissions before the prescribed authority demonstrating before it that the petitioner Narendra Singh was a trespasser. He may be living with his younger brother Sri Amar Singh Sethi but he was never inducted as a tenant in the premises. He has no right to file an application or objection and contest the release application. The learned Counsel for the landlord has drawn the attention of the Court to three different statements made by the petitioner before the prescribed authority and this Court. The documentary evidence was produced before the prescribed authority to demonstrate that Sri Amar Singh Sethi was the real tenant, who had already left the premises in the year 1989; the petitioner was a trespasser only and he has no right to file this petition. The petitioner cannot be said to be a family member of out going tenant Sri Sethi in view of Section 3 (g) of the Act, which says that a brother cannot be defined as a family member of the tenant. Sri Anil Kumar, learned Counsel for the landlord has placed reliance on the decisions of this Court as reported in 1995 (1) ARC 220 Harish Tandon v. Additional District Magistrate. Allahabad, U.P. and Ors. 2004 (2) AWC 1020 (LB) : 2004 (1) ARC 279 (LB) Kailash Nath Chaturvedi v. Additional District Judge (Court No. 12). Lucknow and Ors. and 2004 (5) AWC 4137 : 2004 (2) ARC 72 Smt. Ram Kunwar and Ors. v. IInd Additional District Judge, Banda and Ors., in support of his submission that a brother is not a family member even if he was living with the his brother, bona fide tenant. In the present case, the petitioner should have left the premises. The premises could not be sublet without seeking permission of the landlord prescribed authority or the District Magistrate, Lucknow. In fact, Sri Amar Singh Sethi was paying rent and all the rent receipts were issued to him.
8. The prescribed authority allowed the release application on 17.10.2003 declaring the premises to be vacant. Earlier to this, an interim order dated 18.9.2003 was passed under Section 12 of the Act by the I Additional City Magistrate/Rent Control and Eviction Officer, Lucknow in Case No. 97 of 2003. The said order was challenged by the petitioner Narendra Singh by filing Writ Petition No. 163 of 2003 (R/C) Sardar Narendra Singh v. Surendra Nath Dinger. The said petition has been clubbed with Writ Petition No. 170 of 2003 (R/C) and thus both the petitions are before me for disposal.
9. The prescribed authority held that Sri Amar Singh Sethi was the actual tenant till 1988, After his vacating the premises in the year, 1989, the first floor of the premises became vacant. The petitioner Narendra Singh was not a member of the family of Sri Amar Singh Sethi as defined under Section 3(g) of the Act and, therefore, no benefit of Section 14 of the Act can be given to him.
10. It is relevant to mention that the landlord had demonstrated before the prescribed authority that his daughter was a mental patient. She needed constant care by his son Himanshu Dinger, his wife and children. The petitioner's son Himanshu Dinger wanted to live with him in the city of Lucknow alongwith his wife and daughter. The prescribed authority has appreciated the bona fide need of the landlord for allowing his application.
11. The revisional court i.e. Incharge District Judge, Lucknow has considered the application seeking revision of the order of the prescribed authority. The learned District Judge has taken note of the fact that the petitioner had filed Writ Petition No. 163 of 2003 (R/C) before this Court, which was pending disposal at the time of filing of the revision. The revision was filed against an order declaring the vacancy. The Court after relying on the judgments as reported in 1998 (1) ARC 153 Naraini Devi v. Mahendra Kumar Tripathi 1994 (2) ARC 502 Hiralal v. Mast Ram 1997 : (2) 558 ARC Raj Kumar Kanaudia v. II Addl. City Magistrate. Kanpur and 1977 ARC 417 Brijmohan Chaturvedi v. X Addl District Judge, Allahabad, has come to the conclusion that the revision was not maintainable. The revision was accordingly dismissed on 1.11.2003. Against this order and earlier order passed by the prescribed authority on 17.10.2003, writ petition No. 170 of 2003 (R/C) has been filed.
12. The learned Counsel for the petitioner has laid much stress on the point that the petitioner was a family member of Sri Amar Singh Sethi. He was living in the premises since 1966 as a joint-tenant. After Sri Amar Singh Sethi had left, the petitioner could stay on the premises and was entitled for the benefit of Section 14 of the Act. It has been submitted by the learned Counsel for the petitioner that the rent was paid to the landlord but no receipts were issued to him. It was further submitted that the landlord did not have the bona fide need as his son and other family members were having other accommodations, houses in the city of Kanpur as also at Lucknow. The petitioner could be treated as joint-tenant, a family member of Sri Amar Singh Sethi or an independent tenant to be recognized by the landlord. The learned Counsel for the petitioner has made several pleas before this Court to remain in possession of the premises. No case law has been cited by him in support of his submissions. He has, however, tried to distinguish the case-laws placed before the Court by Sri Anil Kumar, learned Counsel for the respondent-landlord.
13. Sri Anil Kumar, learned Counsel for the respondent-landlord has strenuously argued that the petitioner is a gross trespasser; he has been continuing to occupy the premises on a meagre rent of Rs. 300/- per month in the central area of the city i.e. Mohalla Khurshed Bagh, Lucknow. The actual tenant Sri Amar Singh Sethi had already vacated the premises in the year, 1989. The petitioner was not a member of the family of Sri Sethi. Once Sri Shethi had left the premises in the year 1989, the premises became vacant as per Section 12(l)(b) of the Act. The petitioner Narendra Singh was never treated as a tenant or recognized in that capacity by the landlord. He never paid rent, nor any rent receipts were ever issued to him. The landlord's daughter is a mentally retarded lady; she required constant look after by the family members, son, daughter-in-law etc. The landlord wanted to live with his son, daughter-in-law and grand-children etc. in his own house. He has proved his bona fide need before the prescribed authority. Sri Anil Kumar has further submitted that the petitioner had no locus stand to contest the application for release before the prescribed authority or to approach this Court under Article 226 of the Constitution of India. In support of his submissions that a sitting tenant is an unauthorized occupant and the release cannot be challenged by an unauthorized occupant, he has placed reliance on the decisions of this Court as reported in 2002 (1) ARC 551 Kandhaiya Lal v. The Rent Control and Eviction Officer and Ors. 2001 (2) ARC 135 Yoothika Bhadoria (Smt.) v. Upper Nagar Magistrate (V)/P.A..R.C.E.O.. Kanpur Nagar and Ors. 2005 (1) AWC 170 : 2004(2) ARC 696 Harish Chandra Agrawal (D) through LRs. v. IIIrd A.D.J., Agra and Anr. and 2002 (2) ARC 702, Satya Narain v. Rent Control and Eviction Officer, Kanpur Nagar and Ors.
14. Sri Anil Kumar, learned Counsel for the petitioner has further submitted that even applying the principles of law as laid down by the Hon'ble Supreme Court of India in the case B.C. Bhutada v. G.R. Mnndada and recent decisions of this Court as reported in 2005 (1) ARC 394 Jogendra Singh Bajaj (Dr.) and Ors. v. IVth Additional District Judge, Saharanpur and Anr. and 2006 (1) ARC 93 Braham Kumar and Ors. v. Raja Ram and Ors., the petitioner Narendra Singh, despite the submission of application for release filed by the landlord on 11.4.1988, did not make any effort to search for alternative accommodation. The failure of the petitioner to search an alternative accommodation is sufficient to decide the question of hardship against the tenant.
15. I have heard the learned Counsel for the parties and have gone through the record.
16. It is apparent from the record of this case that the petitioner was an unauthorized occupant in the premises He had no right to continue in the Premises after the real bona fide tenant Sri Amar Singh Sethi had vacated it and moved to his own house No. 288/115 in Mohalla Arya Nagar. Lucknow. It has been brought on record that Sri Sethi had also acquired a house No. D-1027. Ram Sagar Misra Nagar (Indira Nagar), Lucknow. The record reveals that Sri Sethi was treated to be a tenant right from 1966 to 1988. The rent was paid by him to the landlord Sri Vishnu Swaroop Dinger or his father. Relations of landlord-tenant never existed between Vishnu Swaroop Dinger or his son S.N.Dinger (present landlord) and Narendra Singh, petitioner.
17. The petitioner has claimed himself to be a co-tenant, joint-tenant or a family member of Sri Amar Singh Sethi. He has taken different pleas before the courts below. Even before this Court, he is not clear about his status. This Court considered the case from all angles and has found petitioner was never inducted in the premises as a tenant by the landlord. No receipts were produced before the trial court or this Court to demonstrate that he ever paid rent to the landlord. Even no money-order receipt or any other document showing tendering of rent has been produced before this Court. It can be presumed from this fact that the petitioner Narendra Singh kept on occupying the premises situate in a central locality of the city of Lucknow since 1989 without paying any rent to the landlord. He had been occupying four rooms with kitchen. latrine, bath-rooms and verandah etc. for the last more than seventeen years.
18. This Court has also taken note of the fact that the release application was filed by Sri Vishnu Swaroop Dhinger, father of the present landlord Surendra Nath Dinger on 11.4.1988. Even if, for the arguments sake, it is accepted that the petitioner was a tenant, he has not demonstrated before this Court as to what efforts he has made to search an alternative accommodation. The petitioner ought to have searched an alternative accommodation after filing of the release application. This is sufficient to decide the question of hardship in favour of the landlord. However, in the present case, the petitioner has failed to prove himself a tenant of the premises. I find support from the case-laws cited by Sri Anil Kumar, learned Counsel for the landlord as B.C. Bhutada v. G.R. Mundada and recent decisions of this Court as reported in 2005 (1) ARC 394 Josendra Singh Baiai (Dr.) and Ors. v. IVth Additional District Judge, Saharanpur and Anr. and 2006 (1) ARC 93 Braham Kumar and Ors. v. Raja Ramand Ors.. In fact, after vacation of the premises by Sri Amar Singh Sethi, a vacancy had arisen. As per Section 12(l)(b) of the Act, where a tenant of the building has allowed it or any part thereof to be occupied by any person (in the present case, his brother Narendra Singh) who is not a member of his family, the tenant shall be deemed to have sublet that building. Interestingly, the actual tenant Sri Amar Singh Sethi never challenged the order declaring the vacancy and releasing the premises. His brother Jarendra Singh, the petitioner had filed objections to the release application which was not permissible. There was no allotment order in favour of Sri Narendra Singh. His occupation was illegal. Evidently he was occupying the first floor of the premises in contravention of the provisions of Sections 11 and 13 of the Act. No order of allotment was made in his favour by the appropriate authority. As per law laid down by this Court, reported in 2002 (1) ARC 551 Kandhaiya Lal v. The Rent Control and Eviction Officer and Ors., an unauthorized occupant having no allotment order has got no right to intervene in the release of the premises. He has no locus to enter into litigation. Similar views have been expressed by this Court in the cases reported in 2002 (2) ARC 702, Satya Narain v. Rent Control and Eviction Officer, Kanpur Nagar and Ors. and 2001 (2) ARC 135, Yoothika Bhadoria (Smt.) v. Upper Nagar Magistrate (V)/P.A..R.C.E.O.. Kanpur Nagar and Ors. On the strength of these decisions, I hold that the petitioner Narendra Singh, being an unauthorized occupant, had no right to intervene in the proceedings pending before the Rent Control and Eviction Officer, prescribed authority. He had no right to object to the release of the premises in question in favour of the landlord. The landlord has already demonstrated before the prescribed authority that his need was bona fide. His daughter was mentally retarded and she needed constant care by the family members. The landlord's son, daughter-in-law fund grand-children wanted to live together with him at Lucknow. In the present case, it has already come on record that the actual tenant Sri Amar Singh Sethi had already vacated the premises in the year 1989 and had gone to live in his own house in Mohalla Arya Nagar, Lucknow. At the time of filing of the release application, he was already having a house at Ram Sagar Misra Nagar (Indira Nagar), Lucknow. He never contested the order declaring vacancy and the release order. The law is well-settled that an unauthorized occupant or a land-grabber should be dealt with sternly, vide judgment of this Court as reported in 2004 (2) ARC 570, Sudhakar Singh v. Ajmal Husain and Ors.
19. In view of above discussion, I don't find any illegality or infirmity in the orders passed by the learned courts below. No case for interference by this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India is made out.
20. Accordingly, the writ petitions fail and are hereby dismissed with costs.
21. The petitioner shall vacate the premises within one month from today. This order has been passed in presence of the learned Counsel for both the parties. The order of the Court shall be complied with within the stipulated period and an affidavit of compliance shall be filed before the Registrar of this Court after one month. This affidavit shall be placed on record. It is open for the landlord respondent to claim damages etc., if he so desires, against the petitioner in appropriate forum in accordance with law.