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BOARD OF BASIC EDUCTION U.P. THRU' SECRY., AND ANOTHER versus VITH A.D.J./SESSION JUDGE, KANPUR NAGAR AND OTHERS

High Court of Judicature at Allahabad

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Board Of Basic Eduction U.P. Thru' Secry., And Another v. Vith A.D.J./Session Judge, Kanpur Nagar And Others - WRIT - A No. 17697 of 2006 [2007] RD-AH 12898 (26 July 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                 Judgement reserved on 17.7.2007

                                                Judgement delivered on 26.7.2007

Civil Misc. Writ Petition No. 17697 of 2006

 Board of Basic Education, U.P. Allahabad and others.    Petitioners

                         versus

Vith Addl. District & Sessions Judge,

Kanpur Nagar and others.    

                                                                                            Respondents

Counsel for the petitioners :    Sri  K. Shahi, Advocate

Counsel for the respondent:    Sri H.N.Singh and Sri B.N.Singh Advocates

Hon'ble Mr. Rakesh Tiwari, J.

List has been revised. None has appeared on behalf of the petitioners. The counsel for the respondents is present. Heard him and perused the record of Civil Revision No. 852 of 2003 which has been tagged for the purpose of hearing of the writ petition.

            The petitioners have filed this writ petition for the following reliefs:-

1. Issue a writ order or direction in the nature of certiorari quashing the order dated 5.7.1997 and 31.7.1995 (Annexures 1 and 2 to the writ petition) passed by respondent nos. 1 and 2 respectively.

2. Issue any other writ order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

3. Award the cost of the writ petition to the petitioner.

            It is submitted that the writ petition has been filed with inordinate delay as the order dated 5.7.1997 is being challenged in the writ petition which has been filed after 9 years, hence the writ petition deserves to be dismissed on the ground of latches itself.

  Brief facts of the case are that Mohan Singh was the landlord of House no. 119/123-A, Darshan Purva, Bamba road, Gumti no.5 Kanpur Nagar of which the Board of Basic Education U.P. Allahabad is tenant in which a Prathmic School, Darshan Purva is being run by the aforesaid Board on monthly rent of Rs.200/-.

It is alleged that father of the respondent Mohan Singh had executed a will in his favour with the condition that after his death the respondent who is minor will be sole owner and his mother will be guardian but she will have no right to transfer or mortgage in any manner. Mohan Singh died in the year 1968.  The name of the respondent was mutated in Nagar Palika record. Since the respondent  was minor his mother Smt. Sunder Devi was collecting the rent on his behalf.

        The respondent filed Rent Case No. 123 of 1994 under Section 21(8) of U.P. Act No. 13 of 1972 against the petitioners which was allowed vide order dated 31.7.95 enhancing the rent to Rs.5288.46 per month with effect from 25.9.1994.

Aggrieved by the aforesaid order dated 31.7.95 the petitioners filed Rent Appeal No. 163 of 1995 before 8th Additional District Judge, Kanpur Nagar who vide order dated 5.7.1997 reduced the rent from Rs. 5288.46 to Rs. 3750.00 per month.

It is submitted that by order dated 5.7.97 passed by the 8th Additional District Judge, Kanpur Nagar has attained the finality.  The petitioners have not paid the rent w.e.f. 21.1.1993.  The respondent has given a notice terminating the tenancy for eviction and recovery of rent at the rate of Rs. 3750.00 per month which was served on the petitioners on 25.2.1998.  

Then respondent filed JSC Suit no. 37 of 1998 Narain Singh Vs. Basic Education Board for eviction and recovery of rent.

The petitioners filed their written statements denying the title of the respondent on the ground interalia that the rent was collected by his mother and the respondent was not landlord on the date of filing of the suit.

The Judge Small Causes Court No. 15, Kanpur Nagar vide order dated 5.11.2003 dismissed the suit on the ground that though the respondent was owner of the house but was not landlord on the date of filing of the suit.

The civil revision was filed by the respondent against the order dated 5.11.2003 passed by the Additional District Judge/ Judge Small Causes Court no. 15, Kanpur Nagar on the ground that the Courts below have failed to consider the definition of the landlord given in Section 3(j) of U.P. Act No. 13 of 1972 which include a person to whom its rent is or if the building let out would be payable and include except in clause 9 the agent or attorney of such person and that the  revisionist respondent in the writ petition  admittedly the sole owner  and rent on his behalf was being collected by his mother and as such it  can not be  said that the  respondent is not owner/landlord  of the house.

The counsel for the respondent has relied upon the order of this Court dated 4.2.2005 which is as under:-

    " Learned counsel for applicant states that opposite party no.1 is a tenant of house no. 119/123-B Darshanpurva  Bamba Road, Kanpur. By order dated 5.7.1997 passed by Vith Additional District & Sessions Judge, Kanpur Nagar rate of rent was fixed Rs. 3750.00 from the date of filing of application under Section 21(8) of U.P. Act No. 13 of 1972. He further urged that opposite party has not paid rent since 1993.

     In the facts and circumstances of the case, I direct opposite party no.1 t deposit entire rent due under order 5.7.97 from the date of filing of application under Section 21(8) of U.P. Act No. 13 of 1972 within a period of six weeks from the date of presentation of a certified copy of this order before opposite party no.1. The amount, if deposited or paid by opposite party no.1 shall be adjusted.

   Sri S.K. Mehrotra, learned Standing counsel is also directed to inform the order passed today to respondent no.1, Board of Basic Education U.P. Allahabad, Basic  Shiksha Adhikari Basic Shiksha Parishad Nagar Nigam Moti Jheel Kanpur Nagar and Secretary to Ministry of Basic Education within a week from today.

   Certified copy of this order be issued to learned counsel for applicant within 3 days on payment of usual charges.

  A copy of this order be also served to Sri S.K.Mehrotra, learned Standing counsel for transmitting the respondents as aforesaid."                                                                      

     The counsel for the respondent has also relied upon the order dated 28.10.2006 in writ petition no. 17697 of 2006 passed by this Court which is as under:-

           "An application under Section 21(1)(8) of U.P. Act No. 13 of 1972 was filed by respondent no.3-landlord for enhancement of rent of House No. 119/123-D situate at Darshan Purva, Bamba road, Gumti no.5 Kanpur Nagar under the tenancy of petitioner no. 1, Board of Basic Education, U.P. Allahabad through its Secretary and petitioner no.2, District Basic Education Officer, Kanpur Nagar.

           The application was registered as Rent Case No. 105 of 1993.

The petitioners filed objections to the aforesaid application. The Rent Control and Eviction Officer/Additional District Magistrate, (IInd), Kanpur Nagar vide his order dated 31.7.1995 enhanced the rent of the disputed accommodation at Rs.5300/- per month.

Aggrieved by the aforesaid order dated 31.7.1995 the petitioners filed Rent Appeal No. 163 of 1995 before the appellate Court. The appellate Court after hearing both the parties vide its order dated 5.7.97 reduced the rent of the disputed accommodation from Rs.5300/- to Rs.3750/- per month.

The petitioners still feeling aggrieved by the order of the appellate Court dated 5.7.97 has come up in this writ petition after 9 years of the passing of the aforesaid order at a very belated stage. After the order dated 31.7.2005 no rent has been paid by the petitioners and they are still running the School in the aforesaid building.

In my opinion, the writ petition ought to have been dismissed on the ground of latches today but in view of the fact that  the future of the children who are in the mid sessions and are studying in the school, is involved, it is directed that the petitioner Board of Basic Education, U.P. Allahabad represented through its Secretary shall pay arrears of rent at the rate of Rs.3750/- per month awarded by the Additional District Judge, Kanpur Nagar from the date of the filing of the application till date which comes to Rs. 5,46,000/- along with interest at the rate of 9% per annum. The petitioners shall continue to deposit the same up to 30th May, 2007 or till the session is over.

The payment shall be made in the name of Register General High Court, Allahabad within one month from today. The question of withdrawal of the aforesaid amount by the landlords so deposited by the petitioners shall be considered by the Court on the next date of listing.

List in the first week of January, 2007."

The counsel for the respondent submits that the judgment and order of the Judge Small Causes Court dated 5.11.2003 dismissing the JSCC suit filed by the respondent is wholly illegal and lower appellate Court has committed gross illegality apparent on the face of record in not treating the respondent as landlord though the Court has accepted the respondent as owner of the house. It is stated that as per the definition of the landlord given in Section 3(g) of U.P. Act No. 13 of 1972 the person who is entitled to receive rent and who is receiving the rent both are the landlords but this aspect of the matter has been completely ignored by the Court below.

He further submits that the respondent has already been held to be landlord vide order dated 31.7.2005 passed by the Rent Control and Eviction Officer in Rent Case No. 123 of 1994 under Section 21(8) of U.P. Act No.13 of 1972 and judgment and order dated 5.7.1997 passed by the Additional District Judge Kanpur Nagar in Rent Appeal No. 163 of 1995 and the said proceedings were between the same party and the Basic Education Board was the defendant in the said suit also, hence the findings of the respondent  being landlord will operate  resjudicata against the petitioners.

He then submits that it is not in dispute that the father of the petitioner was the owner and landlord of the house in dispute and he has executed a will making the respondent as sole owner and in such circumstances the mother of the respondent was acting as guardian and was collecting the rent on behalf of the respondent as he was mother at that time and the writ petition is highly belated and suffers from latches as by the present writ petition the order dated 5.7.97 is being challenged after 9 years and there is no justifiable reason has been given for latches, hence the writ petition deserves to be dismissed on the ground of latches.

It is next submitted that the Basic Education Board the tenant has failed to comply with the order dated 5.7.97 passed in Rent Appeal No. 163 of 1995, order dated 4.2.2005 passed by this Court in Civil Revision No. 852 of 2003 and order dated 28.10.2006 passed by this Court in this writ petition and the petitioners are not paying the rent with effect from the month of January, 1993 which is payable at the rate of Rs.3750/- per month.

It is submitted that order enhancing the rent to Rs. 3750/- was passed by the 8th Additional District Judge, Kanpur Nagar in Rent Appeal on 5.7.97 and by now more than 5 years have passed and in view of Section 21(8) II proviso the rent is further revisable after expiry of 5 years, hence further revision of the rent has now become due with effect from 5.7.2002 and 5.7.2007 and the rent is recoverable as per the rate which ought to have been revised with effect from 5.7.2002 and 5.7.2007.

Undisputedly father of respondent Narain Singh  had executed a will in his favour as such he was owner and landlord of the disputed accommodation. The rent was payable to him under Section 3(g) of U.P. Act No. 13 of 1972 but since he was minor the rent was being collected by his mother as a guardian. Merely because the rent was collected by the mother of the respondent. She was only a  agent of the respondent and not as the landlord in her individual  capacity. The Courts below have committed an illegality apparent on the face of record in holding that Narain Singh was not the landlord and owner of the house in dispute.

Further the respondent has already been held to be the landlord of the house in dispute vide order dated 31.7.2005 passed by the Rent Control and Eviction Officer in Rent Case No. 123 of 1994 filed under Section 21(8) of U.P. Act No. 13 of 1972 as well as vide judgment and order dated 5.7.1997 passed by the Additional District Judge, Kanpur Nagar in Rent Appeal No. 163 of 1995 between the same party i.e. Basic Education Board and the respondent Narain Singh which would amount to res-judicata. The present writ petition filed by the Board of Basic Education is highly belated and suffers from latches as the order dated 5.7.97 has been challenged after more than 9 years without any justification or reason and for this reason too the writ petition is liable to be dismissed.

Furthermore, the petitioner Board of Basic Education has failed to comply with the order dated 5.7.97 in Rent Appeal No. 163 of 1995, order dated 4.2.2005 passed by this Court in Civil Revision No. 852 of 2003 as well as the order dated 28.10.2006 passed by this Court in Writ Petition No. 17697 of 2006 and also for this reason the petitioners are not paying the rent with effect from the month of January, 1993 which is payable at the rate of Rs.3750/- per month, the writ petition deserves to be dismissed.

The order of enhancement of rent was passed by the 8th Additional District Judge, Kanpur Nagar and the Board of Basic Education has not paid the rent for more than 10 years and in view of proviso II of Section 21(8) of U.P. Act No. 13 of 1972 the rent is further revisable after expiry of 5 year, hence further revision of the rent has now becomes due with effect from 5.7.2007 which would be recoverable as per the market rent on the aforesaid date.

For the reasons stated above, the writ petition is dismissed. The respondent is entitled to receive rent at the rate of Rs.3750/- per month from January, 1993 up to 5.7.2007. Since the rent has not been paid to the landlord from January, 1993 up to 5.7.2007 the same shall be recoverable as arrears of land revenue from Board of Basic Education, Allahabad within a period of two months from the date of production of a certified copy of this order before the authority concerned. In this regard a report shall be submitted within one month thereafter to this Court.

In so far as the revision of rent at the market rate which was revisable from January, 1993 to 5.7.2007 is concerned, the landlord may move an application under Section 21(8) of U.P. Act No. 13 of 1972 before the Prescribed Authority for its computation within a period of one month from today who will determine the rate of rent of the disputed house from the aforesaid date within a period of two months thereafter. If any amount towards rent has been paid by the petitioners to the respondent landlord, the same shall be adjusted while computing the rent.

Dated 26.7.2007

CPP/-

 


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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