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LAXMI NARAIN AGARWAL versus RENT CONTROL AND EVICTION OFFICER & OTHERS

High Court of Judicature at Allahabad

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Laxmi Narain Agarwal v. Rent Control And Eviction Officer & Others - WRIT - A No. 28826 of 1998 [2006] RD-AH 18877 (8 November 2006)

 

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

Reserved

Civil Misc. Writ Petition No.28826 of 1998

Luxmi Narain Agarwal

Vs.

Rent Control and Eviction and Officer,Allahabad and others

Hon. Sanjay Misra, J.

The petitioner has challenged the order dated 25.8.1998 passed by the Rent Control and Eviction Officer, Allahabad in case no. 47 of 1996 Kamlesh Kumar Vs. Nageshwar Prasad Kesarwani whereby  vacancy  has been declared u/s 12(1) of U.P. Act No.13 of 1972 with respect to a two door shop situate at house no.98/109 Leader Road, Allahabad.  The case of the petitioner is that in the year 1963 the petitioner's father took the shop on rent from the father of the respondent no.2 who was owner and landlord. The petitioner and  his brother namely Jamuna Prasad Singhal were carrying on a business in partnership under the name and style of M/S Singhal  Brothers. In the year 1974 the petitioner's elder brother Jamuna Prasad Singhal disassociated himself from the partnership and the petitioner continued to carry on the aforesaid business from the shop in question. His case is that from time to time the rent was increased and the petitioner continued to pay the same although the respondent no.2 issued the rent receipt only in the name of Jamuna prasad Singhal. However it is stated that  the petitioner continued to pay the rent and used to sign as such on the counter foil of the rent receipt and as such the petitioner was occupying the shop as a tenant with the consent of the landlord after his elder brother Jamuna Prasad Singhal disassociated himself from the business. The petitioner states that till Jamuna Prasad Singhal was a partner of the firm the petitioner was a co-tenant alongwith him.  It is further stated that in the year 1975 the landlord gave consent to the petitioner for installation of an electric

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connection in the shop in question. When the respondent landlord wanted to enhance the rent to Rs.600/- per month the petitioner failed to do so hence he was served with a notice dated 3.7.1996 under section  106 of Transfer of Property Act demanding arrears of rent  with effect from 1.1.1996 to 30.6.1996 amounting to Rs.18000/-. The petitioner replied and also remitted arrears of rent though a money order.  Thereafter one Kamlesh Kumar who is alleged to be a close relation of the landlord filed an application dated 5.8.1996 for allotment of the shop in question on the ground that the tenant Jamuna Prasad Singhal has vacated the premises and the petitioner is in unauthorised possession of the same.  The petitioner contested the proceedings by filing affidavit and document in support of his case. However, the Rent Control and Eviction Officer has proceeded to declare vacancy u/s 12 of U.P.Act no.13 of 1972.

The contention of learned counsel for the petitioner is that by virtue of the length of tenancy from prior to enforcement of the Act  he was entitled  for being given the benefit of section 14 of the Act which  came into effect by its insertion in 1976 for regularization of his occupation in the shop in question. In support of the aforesaid  contention learned counsel for the petitioner contends that the evidence  filed by him in the form of  rent receipts clearly indicated that although the same were issued by the landlord in the name of Jamuna Prasad Singhal but in effect  the rent was being paid by the petitioner who was singing the counter foil also. He contends that installation of electric connection in his own name with the consent of the landlord was a clear indication that the petitioner was a tenant of the shop in question.  The petitioner has further filed evidence in the form of sales tax and income tax assessment orders of several years  to indicate that he was carrying on his business from the shop in question and as such his occupation over the shop was as a tenant and

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was required to be regularized u/s 14 of the Act. For  the aforesaid submission learned counsel for the petitioner placed reliance on the decision of this court in the cases of Shiv Karan Nath Vs. IV Addl. District Judge and others reported in 1982 ARC 556, Rajendra Kumar Vs.District Judge reported in 1983 ARC 793, and Sheel Kumar Misra Vs. Smt. Usha Rani Misra and others reported in 2000(1) ARC 551. It is also contended on behalf of the petitioner that  he had filed an application for summoning the  counter foils of the rent receipts from the landlord.The said counter foil bore the signature of the petitioner and therefore it was an evidence to indicate that the respondent landlord was accepting the rent from the petitioner knowingly and as such had acknowledged that the petitioner was tenant of the shop even after his brother the co-tenant had disassociated himself  from the partnership of M/S Singhal Brothers. In support of the said contention learned counsel has relied upon a decision of the Hon'ble Supreme Court in the case of Gopal Krishnaji Vs. Mohd.Haji Latif reported in AIR 1968 SC 1413 and contended that  when a party is withholding the best evidence in his possession which  could throw light  upon the controversy in issue then the court ought to draw an adverse inference against him even though onus of proof  does not lie upon such party. He contends that in the present case even though the respondent landlord was not directed by the court to produce the counter foils of the rent receipts even then it was essential for him to produce  the same before the court. Learned counsel for the petitioner has further contended that the respondent no.2 landlord has filed a suit no.60 of 1998 against Jamuna Prasad Singhal in the court of Judge Small Causes, Allahabad on the basis of the  notice dated 3.7.1996 u/s 106 of Transfer of Property Act for arrears of rent and eviction wherein it has been stated that the said Jamuna Prasad Singhal is alleged tobe continuing as tenant. He submits that the aforesaid pleading of the respondent landlord falsifies

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the case that Jamuna Prasad Singhal has ceased to occupy the shop and therefore, the provision of section 12 of U.P.Act No.13 of 1972 could not be attracted in the present proceedings.

Learned counsel for the respondents on the other hand has referred to the lease deed executed between Jamuna Prasad Singhal and the father of the respondent no.2 landlord dated 16.9.1963 and has contended that the aforesaid lease deed clearly provides that the tenancy of shop in question has been created with Jamuna Prasad Singhal alone and therefore when admittedly  Jamuna Prasad Singhal disassociated himself from his business then his partner in the said business being the petitioner had no right of tenancy unless it was with the consent of the landlord. He contends that there was no consent given by the landlord to the occupation by the petitioner after Jamuna Prasad Singhal had in effect removed himself from the shop in dispute. Learned counsel submits that admittedly the rent receipts were issued by the respondent landlord in the name of Jamuna Prasad Singhal in as much as whether  Jamuna Prasad Singhal had disassociated himself from  the partnership or not was not either known to the respondent landlord nor it would have any effect upon the tenancy of Jamuna Prasad Singhal till he continued to pay the rent and abide by the terms of lease deed. His contention is that since the petitioner was brother of Jamuna Prasad Singhal he used to deposit the rent  on behalf of Jamuna Prasad Singhal. Learned counsel for the respondent therefore contends that  in the absence of consent of the landlord  the occupation of the petitioner was clearly unauthorized. He further contends that it is not open to the parties to contend that a lease deed was a Benami transaction and the contents of the lease deed in the present case clearly indicate that it was executed creating tenancy only in favour of Jamuna Prasad Singhal. In case there is no modification or variation in the written deed then even though another

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person is paying the rent it can not be said that the lease deed  was granted  or tenancy was created  in favour of the  said other person. It is further contended by learned counsel for the respondent landlord that the benefit of section 14 of the Act is not permissible or available to a person who is carrying on business in the shop in question on behalf of the tenant or even as a licensee and that  the tenancy right and licensee right can not co-exist simultaneously.  He contends that when a tenancy has been created by a written document and the said tenancy is neither relinquished nor surrendered then the necessary inference would be that  the deposit of rent is being  made on behalf of the tenant and payment of rent by another person can not create relationship of landlord and tenant. In support of his contention learned counsel for the respondents has placed  reliance on the decision in the cases of Ranvijaya Shahi Vs. Bala Prasad Motani reported in AIR 1978 Patna 91, A.K.Ghosh Vs. II Addl.District Judge reported in 1979 ARC 242, Roshan Lal and another Vs. Munshi Ram and others reported in AIR 1981 Punjab and Haryana 73 and Prithvi Singh Rawati Vs. District Judge and others reported in 1984(2) ARC 106.

Having heard learned counsel for the parties a perusal of the impugned order indicates that the Rent Control and Eviction Officer has considered the report of the Rent Control Inspector and found that the shop in question was in the occupation of the petitioner whereas  it was given in the tenancy of Jamuna Prasad Singhal. It was recorded in the report of Rent Control Inspector that the petitioner  was not a member of the family of Jamuna Prasad Singhal. The Rent Control and Eviction Officer considered the affidavit and documents filed by the parties and recorded that admittedly the  documents produced by the petitioner indicated that Jamuna Prasad Singhal was assessee up to the year 1974-1975 and  it was also established that he was in occupation of the shop as a tenant by a written agreement. After

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resignation of  Jamuna Prasad Singhal from the partnership with effect from 1.4.1975 he started working in Tata Auto Sale and  the petitioner continued in possession.  The rent receipts  were considered by the court below who found that the same were always issued in the name of Jamuna Prasad Singhal hence it recorded that  the possession of the petitioner could not be with the consent of the landlord. The plea of benefit of section 14 of the Act as set up by the petitioner was also turned down on the ground that the said section was brought in the Act on 5.7.1976 and the petitioner was in occupation of the shop in question prior thereto  without  the consent of the landlord, as such he was not entitled to regularization of his occupation since he was neither a tenant nor a lessee. The court below  recorded its finding of fact that the tenant namely Jamuna Prasad Singhal has substantially removed his effect from the shop in question and a deemed vacancy u/s 12 (1) of the Act had occurred.  It has passed the impugned order on the aforesaid finding of fact and directed to proceed to consider the application for allotment  of Kamlesh  Kumar after publication of the vacancy. The petitioner  had filed this writ petition against the aforesaid order and this court had passed an interim order  permitting the proceeding for allotment/ release  to go on. However  the eviction of the petitioner was stayed by this court.

From the aforesaid fact and circumstances and submission of the parties it is clear that  even if the counter foils of the rent receipt which alleged to bear the signature of the petitioner were not produced by the respondent landlord  the court below  has recorded clearly that the rent was paid  on behalf of the tenant who had neither relinquished nor surrendered  the tenancy of the shop in which he was doing business  in a partnership firm by the name and style of M/S Singhal Brothers. The view of the court was that when  the tenancy

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was  created by a written document in favour of Jamuna Prasad Singhal then  a fresh tenancy in favour of the petitioner could not be created  only on  the fact that the petitioner was paying the rent and signed the counter foils of rent receipts issued in the name of tenant Jamuna Prasad Singhal.  The aforesaid view of the court below can not be said to be illegal in as much as neither the petitioner is a member of the family of Jamuna Prasad Singhal nor he was a co-tenant with Jamuna Prasad Singhal as is quite apparent from the written agreement.  The court's conclusion that the petitioner did not acquire the status of a tenant was based upon the fact that there was no consent of the landlord to the occupation of the petitioner. The disassociation of Jamuna Prasad Singhal from the partnership firm is not alleged to have been informed to the landlord in time or that the landlord had consented expressly or impliedly to the occupation of the petitioner after Jamuna Prasad Singal retired from the partnership. It is not  the case of the parties that the firm by the name and style of M/S Singhal Brothers was changed to another name whereby it could be said to be a circumstance indicating that the petitioner continued the business in another name and was permitted to  continue by the landlord which amounted to consent or that it could be inferred that the landlord had consented. In absence of any such pleading the finding recorded by the court below is based upon the evidence and can not be set aside by this court. The contention of the respondents that the business in the name and style of M/S Singhal Brothers was continuing and  the petitioner was carrying on the same  business in the name and style of M/S Singhal Brothers therefore, it would be only on behalf of the tenant of the shop and the petitioner could not claim to have obtained the status of a licensee or a tenant, is acceptable in view of the fact that in the present case the tenancy was created by a written agreement. The finding recorded by the court below to the effect  that the tenant had substantially removed its effect

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from the shop in question is based on evidence and can not be said to   suffer from any error of fact  or law.

The petitioner is admittedly the brother of the tenant Jamuna Prasad Singhal. He does not come within the definition of  family as defined in section 3(g) of the Act nor within the definition of tenant given in section 3(a) of the Act. Admittedly the tenancy was created only in favour of Jamuna Prasad Singhal and the averment made by the petitioner that the tenancy was made for a business to be carried on  by Jamuna Prasad Singhal and the petitioner is not borne out from the record. The finding of the court below to such effect is  in accordance with law and cannot be said to be erroneous or  illegal. The suit no.60 of 1998 instituted  by respondent landlord against the tenant Jamuna Prasad Singhal was for  arrears of rent and eviction after serving notice u/s 106 of Transfer of Property Act and therefore,  the said suit can not have any effect on the present proceedings which have been started  on an application made by one Kamlesh Kumar for allotment  of the premises on the ground  that  a vacancy has occurred. It is the case of the petitioner  as well as  of Jamuna Prasad Singhal who has filed his own affidavit before the court below stating therein that he has withdrawn  himself from the partnership and the business is being continued by the petitioner. A plea has been taken by Jamuna Prasad that written rent agreement ( which has been filed as annexure-1 to the counter affidavit) is false and fictitious but since Jamuna Prasad Singhal had already substantially removed his effect from the shop in question he has not contested the proceeding but has only  filed the affidavit which appears to be in support of the petitioner's case regarding co-tenancy. It has been held by the court below that tenant was Jamuna Prasad Singhal and therefore  the plea of the

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petitioner that he was a co-tenant has neither been established on record nor it has been believed by the court.

For the aforesaid reasons the writ petition lacks merit and is accordingly dismissed. No order is passed as to costs.

November____,2006

Gc.


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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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