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SMT. FAHMIDA LIST versus SMT. RAISA KHATOON AND OTHERS

High Court of Judicature at Allahabad

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Smt. Fahmida List v. Smt. Raisa Khatoon And Others - WRIT - A No. 9515 of 2001 [2006] RD-AH 12587 (31 July 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 7                                                        

         Civil Misc. Writ Petition No. 9515 of 2001

Smt. Fahmida and others     Versus       Smt. Raisa Khatoon and others

Hon'ble Rakesh Tiwari, J

             Heard counsel for the parties and perused the record.

      This writ petition is directed against the order dated 3.3.2001 passed by the Ist Additional District Judge, Moradabad. By the aforesaid impugned order the application for release of the accommodation in dispute of the applicants-landlords has been allowed.

    Brief facts of the case are that the dispute in this petition pertains to a portion of the house situated in Mohalla Bakbahadurganj Almaruf Kachcha Bag infront of coal depot and behind the Pyau Ke Neem Wali Gali , District Moradabad.

A release application under Section 21(1)(a) of U.P. Act No. XIII of 1972 was filed by the respondent-landlords alleging that they require the disputed portion of the accommodation in question as they are in bonafide need of the same. The aforesaid application was contested by the petitioners on the ground that the landlords have not stated the correct facts and their need is not bonafide.

The Trial Court found that the landlords had not corrected stated the facts that they had only 3 rooms accommodation and that in fact they had seven rooms and further that they had purchased another house in Mohalla Tabacoowalan, district Moradabad as such the application for release of the accommodation in question of the  respondents  was dismissed vide order dated 22.1.98.

Aggrieved the respondents filed Rent Control Appeal No. 7 of 1998 Smt. Raisa Khatoon and others Vs. Smt. Fahmida and others.

The lower appellate Court vide its judgment dated 3.3.2001 found that the  tenants had purchased one house by a registered sale-deed dated 6.3.1995 from one Shafiq resident of Jayantipur having an area of 80 sq. meters within the municipal area of Nagar Nigam, Moradabad.  The appellate Court further came to the conclusion that application of the landlords for release of the accommodation in dispute in the circumstances was liable to be allowed.

Allowing the appeal the lower appellate Court set aside the order dated 22.1.98 passed by the Prescribed Authority and directed the tenants to vacate and handover the peaceful possession of the disputed accommodation to the applicants within a period of one month from the date of the judgment failing which the applicants will be entitled to recover the possession of the disputed accommodation in accordance with the due process of law.

Aggrieved by the aforesaid order dated 3.3.2001 the petitioners-tenants have come up in writ petition.

The counsel for the petitioners contends that the petitioners  tenancy of  two rooms, one kitchen and the other bathroom at the rate of Rs.250/- per month of the landlords with the tenants and their bonafide need was more. He further submits that the trial Court after considering the evidence as well as affidavits found that the need of the landlords was not bonafide but the appellate Court has allowed the appeal in a cursory manner by the impugned order dated 3.3.2001 which is liable to be quashed.

The counsel for the landlords has relied upon explanation (i) of Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction ) Act, 1972 and contends that since since the tenants have acquired their own residential house hence the objection against the release application is not sustainable.

            Explanation (i) of Section 21 of U.P.Act No. XIII of 1972 is as under:-

         "where  the tenant or any member of his family ( who has been normally residing with or is wholly dependent on him ) has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality , notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained."

It is apparent that the petitioners have built their own house  in the city of Moradabad . It has also come on record that the petitioners have opened a shop in the tenanted accommodation, which was taken by them for residential purposes. The tenants it appears are misusing the provisions of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

        There is a flood of such frivolous litigation where the tanant does not want to vacate the house as he expects the landlord to pay him huge amount of money for handing over peaceful possession of the tenanted accommodation. On the other hand, the landlords also can not be said to be any better and want the tenants to vacate the accommodation under his tenancy for which cases are set up on one pretext or another. The authorities too do not apply their judicial mind and pass deterrent order in circumstances of each case with the result that orders are passed after much delay. The tenant on one hand wants premium for vacating and on the other hand the landlord leaves no stone unturned to get an order in his favour and the authorities/courts below are passing order without imposing deterrent costs and fixing suitable rent and damages for unlawful use and occupation and for misusing the provisions of the Act similarly by the parties

It is high time that strict measures are taken to tackles this situation seriously. Section 4 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 provides for prohibition of premium on rent payable. The rent payable for any building is to be in accordance with Sections 5, 6,7,8,9-A and 10 in harmony with other provisions of the Act so as to achieve the object and purpose of the Act.

The petitioners have misused the provisions of the Act by not vacating and handing over the peaceful possession of the accommodation in dispute to the respondents even though the petitioners have constructed their own house. U.P. Act No. XIII of 1972 is to be followed in letter and spirit.  The petitioners have been resisting for release of the accommodation in question on the ground that they have bonafide need of the residential accommodation.

However, in the present case as appears from the record the tenants are using the residential accommodation now for commercial purposes after constructing their own house, they are liable to pay rent and damages for illegal occupation and use of the tenanted portion as well as cost of constructed side gate and for misusing the provisions of the Act to defeat its aims and object. Release application has been filed as for back as in 1972.  The petitioners have no locus standi to oppose the application for release once they had constructed their own house in view of explanation to Section 21 of the U.P. Act No. 13 of 1972. This writ petition has been filed with ulterior motive and to defeat the purpose of the Act, which cannot be permitted.

     For the reasons stated above, the writ petition is dismissed.

      The petitioners are directed to pay rent and damages for use and occupation of a residential building illegally held by them under their tenancy at the rate of Rs.5,000/- per month from the date of the appellate order i.e. 3.3.2001 when for the first time order was passed against the petitioners. In the circumstances the rent and damages ten times the monthly rent + cost of litigation payable by him are as under:-

           

  250x10=25,00/- per month       rent/damages from the date of   Rs.1,90,000/-

                                                    appellate order i.e. 3.3.2001 till  

                                                     vacation of the accommodation.

 Cost of litigation                                                                              Rs.    2,000/-

                                                                                            Total     Rs. 1,92,000/-    

             At this stage, the counsel for the petitioners submits that the rent and damages for use and occupation are too high and same standard formula may be fixed for calculating reasonable rent and damage for alleged use and occupation. A direction is issued to the petitioners to deposit rent and damages at the rate of Rs. 25,00/- per month on the basis of above formula which shall be paid to respondent no.1 within a period of two months from today failing which it shall be recovered as arrears of land revenue from the petitioners within one month thereafter and shall be paid to the respondents immediately on its recovery. The respondents shall handover peaceful vacant possession of the accommodation to the landlords within a month from today.

Dated 31.7.2006

CPP/-


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