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Shekhar Bahuguna v. Xvi-Addl Distt. Judge And Ors. - WRIT - A No. 38371 of 1992 [2006] RD-AH 3429 (14 February 2006)


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(Court No. 51)

Civil Misc. Writ Petition No. 38371 of 1992

Sri Shekhar Bahuguna Versus VI Additional District Judge, Allahabad and others.

Hon'ble S.U.Khan J

Heard Sri Shashi Nandan learned Senior Counsel assisted by Sri Sanjiv Kumar learned counsel for the petitioner and Sri Kripa Shanker Singh learned counsel for the landlord respondent No. 4.

This matter relates to house No. 16 Nyay Marg (12-B Hastings Road, Allahabad).

According to learned counsel for the tenant petitioner it contains eight rooms alongwith other amenities. According to the learned counsel for the landlord respondent No.4 apart from 8 rooms there are two verandahs also in the accommodation in dispute. The accommodation in dispute was allotted to late Sri Hemwati Nandan Bahuguna about 50 or 60 years before on rent of Rs. 60/- per month. According to learned counsel for landlord late Sri H.N.Bahuguna had through mutual agreement enhanced the rent to Rs. 1500/- per month, which he paid until February 1989  (Sri H.N.Bahuguna died on 16.3.1989). Learned counsel for the petitioner states that rent was not enhanced from Rs. 60 to Rs.1500/- per month by late Sri H.N.Bahuguna. However according to learned counsel for the petitioner rent was enhanced by the petitioner from Rs. 60 to Rs. 150/- per month (para No. 3 of the writ petition).

Sri H.N.Bahuguna on his death left behind his widow  Smt Kamla Bahuguna, two sons Sri Shekhar Bahuguna, Sri Vijay Bahuguna and one married daughter Mrs. Rita Joshi. This petition was initially filed by Smt. Kamla Bahuguna and Sri Shekhar Bahuguna. The name of Smt Kamla Bahuguna was scored off. It is not clear as to whether it was done with the permission of the court after filing the writ petition or otherwise. However Smt Kamla Bahuguna has died.

Immediately after the death of late Sri H.N.Bahuguna, a somewhat unusual application was filed by Smt Kamla Bahuguna and Sri Shekhar Bahuguna before R.C & E.O, Allahabad. They stated that out of four legal representatives, left behind by Sri H.N.Bahuguna only they were residing in the house in dispute and the other two heirs Sri Vijay Bahuguna and Smt Rita Joshi were residing separately, Sri Vijay Bahuguna at Delhi and Mrs. Rita Joshi along with her husband. Sri Vijay Bahuguna also filed an application to that effect. The prayer in the application of Smt Kamla Bahuguna and Sri Shekhar Bahuguna filed before R.C & E.O was that the house in dispute must be allotted to them as they were the only heirs of original tenant who were residing along with him at the time of his death in the house in dispute. The application was rather redundant. According to the definition of the tenant given under section 3(a) of U.P Act No. 13 of 1972, on the death of the tenant in the case of residential building such of his heirs as normally resided with him in the building at the time of his death become the tenant. However R.C & E.O by order dated 31.3.1989, annexure 2 to the writ petition (annexure 2 does not bear any date however learned counsel for both the parties admitted that it was passed on 31.3.1989) allotted the building in dispute in favour of Smt Kamla Bahuguna and Sri Shekhar Bahuguna. As stated earlier the said order was wholly redundant having no consequence. Landlord could very well ignore the same however he filed application under section 16(5) of the Act before R.C & E.O for recall of the said order. Application was filed in August 1989 copy of which is annexure 3 to the writ petition. It was later on registered as Case No. 94 of 1991.

For a long time, no order was passed on the recall application of the landlord. Thereafter in or about January 1992 landlord filed suit for eviction being SCC Suit No. 6 of 1992 on the file of District Judge/ JSCC Allahabad and release application under section 21 of the Act numbered as case No. 29 of 1992. In the release application as well as in the suit only Smt. Kamla Bahuguna and Sri Shekhar Bahuguna were impleaded as defendants/ opposite parties in view of order of R.C & E.O dated 31.3.1989. The petitioners adopted a novel procedure of avoiding to contest the said proceedings by filing this writ petition. The main prayer in this writ petition is as follows:

"Issue a writ, order or direction in the nature of mandamus commanding the respondents No. 1 to 3 (A.D.J, Prescribed authority and R.C & E.O) not to proceed with the applications under section 16(5) and 21 of the Act numbered as case No. 94of 1991, 29 of 1992 and suit No. 6 of 1992."

In fact it is a prayer for writ of prohibition.

In this writ petition on 23.10.1992, following stay order was passed: -

"Meanwhile further proceeding in case No. 29 of 1992 pending in the court of 2nd respondent (prescribed authority) case No. 94 of 1991 pending before Rent Control & Eviction Officer, Allahabad and suit No. 6 of 1992 pending in the court of first respondent ((16 A.D.J, Allahabad) shall remain stayed until further orders."

It has repeatedly been stated in the writ petition that release application on the ground of bonafide need and suit on the ground of arrears of rent and sub-letting filed by landlord respondent against tenants petitioners have been instituted "with an intent to further harass the petitioners and squeeze  them out from the accommodation in dispute" and are frivolous (Paras  22, 23,24 and 31). It has also been stated that proceedings are malafide actuated by political motive and intended to malign the petitioners. It has also been stated that release application contains wrong allegations regarding residence of petitioners and that as landlord is residing at Delhi hence he has got no need. It has also been stated that the suit is also malafide as rent has been claimed at the rate of Rs. 1500/- per month while it is only 150/- per month and the fact that petitioners have deposited the rent under section 30 of the Act (@ Rs. 150/- per month) has been concealed. It has also been stated in Para 30 of the writ petition that in the plaint of the suit it has wrongly been mentioned that house in dispute has been sublet by the petitioner to his brother Mr. Justice Vijay Bahuguna (who had been appointed as Judge of this High Court by the time when writ petition was filed) and that residence of brother does not amount to subletting.

From the point of view of a defendant/ respondent/ opposite party every proceeding initiated against him is harassment, based on wrong facts and not liable to be proceeded particularly when the proceedings are for eviction of a tenant. Whatever defence petitioner intended to take was fully open to him in the release application and in the suit. Absolutely nothing has been stated in the writ petition regarding non-maintainability of release application and the suit.

It has been held by the Supreme Court in AIR 2003 SC 3290 D.T.Devasthanams Vs. T.A.Charyulu that "a writ of prohibition is normally issued only when the inferior court or tribunal (a) proceeds to act without or in excess of jurisdiction (b) proceeds to act in violation of rules of natural justice (c) proceeds to act under law which is itself ultra vires and unconstitutional or (d) proceeds to act in contravention of fundamental rights. Principles, which govern exercise of such power, must be strictly observed. A writ of prohibition must be issued only in rarest of rare cases........... Lax use of such a power would impair the dignity and integrity of the subordinate courts and could also lead to chaotic consequences. It would undermine the confidence of subordinate courts" (Para 14). Harassment, perceived or real is not a ground for issuing writ of prohibition.

In the instant writ petition there is not a least rhyme and reason given for short-circuiting the proceedings before the prescribed authority and JSCC. Even if each and every word stated therein is taken to be correct like a gospel truth still proceedings before prescribed authority and JSCC remain hundred percent competent. In the writ petition it has repeatedly been asserted that proceedings of eviction are meant to harass the tenant. I hold exactly the opposite. Filing of this writ petition and getting the proceedings stayed on insufficient ground (rather on no ground) was a pure harassment of the landlord by the petitioners.

Under section 95 C.P.C, it is provided that where in any suit a temporary injunction was granted and it appears to the court that such injunction was applied for on insufficient grounds or the suit fails and it appears to the court that there was no reasonable or probable ground for instituting the same the court may upon the application of the defendant award reasonable compensation up to Rs. 50000/- to the defendant for the expenses or injury caused to him. In exercise of writ jurisdiction principles of C.P.C apply but not its rigours. In the instant case I find that filing of this writ petition and obtaining stay order which remained in operation for 14 years was utter abuse of the process of the court in its worst form. The petitioner is therefore liable to pay reasonable damages/compensation to landlord respondent. I determine the same at Rs. 75000/-. Learned counsel for the petitioner argued that firstly no compensation / cost shall be awarded and secondly if it is to be awarded at all then it must be substantially reduced. I do not agree. In my opinion the amount of Rs. 75000/- is not at all excessive under the facts and circumstances of the case.

As far as order dated 31.3.1989 passed by R.C & E.O is concerned in the writ petition, it has repeatedly been stated that it is not a fresh allotment order but only an order of mutation. Mutation is affected by municipal authorities in respect of occupation of house situate within municipal / Nagar Maha Palika limits. R.C & E.O has got no business to affect mutation. In any case as petitioner himself admits that it was not a fresh allotment order and as other two surviving legal representatives of Sri H.N.Bahuguna i.e. Sri Vijay Bahuguna and Mrs. Rita Joshi did not object to sole tenancy of the petitioners (now of Sri Shekhar Bahuguna alone after the death of his mother) hence no useful purpose will be served by keeping the matter of review before R.C & E.O alive. Accordingly writ of prohibition is issued in respect of case No. 94 of 1991 pending before R.C.& E.O Allahabad. No further proceedings shall be taken in respect of the said case. The effect of this order is that after the death of Late Sri H.N.Bhuguna only the petitioners i.e. Smt Kamla Bahuguna and Sri Shekhar Bahuguna and after the death of Smt Kamla Bahuguna only Sri Shekhar Bahuguna should be deemed to be the tenant of the accommodation in dispute. In fact landlord had submitted to the order passed by R.C & E.O dated 31.3.1989 and he had impleaded only the petitioners as defendants/ opposite parties in the suit as well as in the release application.

Rent of Rs. 150/- per month, which according to the learned counsel for the tenant is the actual rent for the accommodation in dispute is virtually as well as actually no rent. Under the Rent control Act, there is great lacuna that there is no provision of fixing of reasonable rent and for periodical enhancement of rent. It is giving rise to extremely undesirable illegal practices in the society as pointed out by the Supreme Court in M.V.Acharya Versus State of Maharashtra AIR 1998 SC 602. The writ court while hearing matters in respect of landlord and tenant is empowered to fix reasonable rent in the interest of justice and to adjust equities in between the parties.

I have held in Khursheeda Vs. A.D.J 2004(2) ARC 64 and H.M.Kichlu Vs. A.D.J 2004(2) ARC 652 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the relief already granted by the courts below, writ court is empowered to enhance the rent to a reasonable extent. Same principle may be applied to the instant case also.

Accordingly writ petition is disposed of with the direction that no further proceedings on the recall application filed by the landlord respondent before R.C & E.O in August 1989 numbered as case No. 94 of 1991 shall be taken and Sri Shekhar Bahuguna shall be taken to be the only tenant of the building in dispute.

It is further directed that with effect from March 2006 onwards, petitioner shall pay rent of the accommodation in dispute to the landlord respondent No.4 at the rate of Rs. 2000/- per month inclusive of all taxes (the current rent of the building in dispute will be several times higher than Rs.2000/- per month). The suit and the release application under section 21 of the Act shall be decided very expeditiously. The dispute in between the parties regarding rate of rent till February 2006 shall be decided in the suit.

Petitioner is also directed to pay Rs. 75000/- cost/compensation/ damages to landlord respondent No.4 for filing this writ petition and getting the proceedings of suit and release application stayed through stay order passed in this writ petition. The said amount shall be paid within four months from today failing which one percent interest per month shall also be paid. If the amount is not paid within four months then it shall be included along with aforesaid interest as cost in the decree in suit (SCC Suit) No. 6 of 1992.




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