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Rajeshwar Prasad Tyagi v. D.J. And Others - WRIT - A No. 19442 of 1999 [2004] RD-AH 1761 (20 December 2004)


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                         W.P. No. 19442 of 1999.

Rajeshwar Prasad Tyagi                                           Petitioner.


District Judge & others.                                             Respondents.



Hon. Vikram Nath,J.

This petition has been filed by the occupant for quashing orders dated 24.3.1999, 30.3.1999 & 19.4.1999, passed by the respondents no. 1 & 2, whereby vacancy has been declared in the premises in dispute, the premises has been released in favour of the landlord respondent No. 3 and the revision against the same filed by the petitioner has been dismissed by the District Judge, Kanpur Nagar.

The dispute relates to the portion of house no. 1/147-I, Nawabganj, Kanpur Nagar. The respondent no. 3 is the owner of the said building and petitioner claims to be a tenant of the portion of the said house having taken it on rent from respondent no. 3 since 1991 at monthly rent of Rs. 300/- per month. One Santosh Kumar filed an application for allotment of the premises in dispute in occupation of the petitioner on the ground that the vacancy has arisen as the petitioner was occupying the premises without any valid allotment order. On the application case No. 5 of 1998 was registered in the Court of Rent Control & Eviction Officer, Kanpur Nagar, under Section 12 of the U.P. Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972 (hereinafter referred to as the Act). A report was called for from the Rent Control Inspector, who, after enquiry, submitted a report dated 18.1.1998. It was alleged in the report that the premises in dispute is situated on the ground floor and comprised of one room, Verandah and latrine. In the said premises the petitioner Rajeshwar Prasad Tyagi was found to be living with his family. At the time of inspection, the petitioner as well as Sri Dilip Kumar Shukla, son of landlady Smt. Laxmi Shukla were present. Sri Dilip Kumar Shukla stated that the petitioner was occupying the premises for the last 6-7 years. The petitioner further stated in the statement that he was residing for the last 8-9 years and at the time when it was let out a portion of it was newly construction. According to the petitioner even the landlady had informed him that the portion let out had been constructed only 3-4 years back. Both the parties submitted their evidence before the Rent Control & Eviction Officer. The Rent Control & Eviction Officer vide order dated 24.3.1999 held that:-

(I)In absence of any evidence led by the petitioner, his contention that the premises in dispute was newly constructed cannot be accepted.

(II)The landlady Smt. Laxmi Shukla had denied the fact that the premises in dispute was new construction.

(III)The occupant petitioner has  failed to produce any order of allotment and, therefore, his possession was that of unauthotised occupent.

In view of these findings the Rent Control & Eviction Officer vide order dated 24.3.1999 declared vacancy in the premises in dispute and invited applications for allotment and release. The landlady filed release application on the ground that the premises in dispute was genuinely required by her for own use of her family members. The Rent Control & Eviction Officer vide order dated 30.3.1999 allowed the release application filed by the landlady. Aggrieved by order dated 24.3.1999 and 30.3.1999 the petitioner filed revision under Section 18 of the Act, which was registered as Rent Revision No. 30 of 1999. The Revisional Court held that unauthorized occupant had no right to contest the release proceedings and, accordingly, dismissed the revision vide order dated 19.4.1999. Aggrieved by the orders dated 24.3.1999, 30.3.1999 and 19.4.1999, the present writ petition has been filed by the occupant.

I have heard Sri Dharam Pal Singh, learned counsel for the petitioner and Sri K.K.Tripathi, learned counsel for the respondent No. 3.

The contention of the learned counsel for the petitioner is two fold. Firstly, that once the plea of the building being a new construction by virtue of which the Act would not apply to such building had been raised, it was incumbent upon the Rent Control & Eviction Officer to record specific finding with regard to the date of construction of the premises in dispute in accordance with the provisions contained under Section 2(2) of the Act. It was contended that in the present case, the Rent Control & Eviction Officer has failed to record any specific finding in the light of the provisions contained under Section 2(2) of the Act, therefore, the impugned judgment is vitiated in law.

The second contention is that a learned single Judge of this Court in the case of Ajai Pal Singh vs. Additional District Judge in W.P.No. 37767 of 2003, vide order dated 09.09.2003 has referred the question as to whether the landlord's connivance with the unauthorised occupant permitting him to occupy any building covered by the Act, could apply for release of the said premises. The contention of the counsel is that the present proceedings arising out of order of vacancy and subsequent release in favour of the landlady, which had been illegally let out to the petitioner by landlady, cannot be released in her favour and the matter may require consideration after dismissal of the reference made by the learned single judge referred to above.

Learned counsel for the respondent has contended that the Rent Control & Eviction Officer considered the plea regarding the applicability of the Act on the ground that constructions were new. The Rent Control & Eviction Officer recorded a finding that there was no material placed by the petitioner in support of his contention and accordingly rejected the said plea. In view of the absence of the any material it was contended, that the Rent Control & Eviction Officer was not obliged to record any finding on the date of construction. There is no infirmity in the judgment of the Rent Control & Eviction Officer.

The learned counsel for the petitioner has relied upon the following 3 judgments in support of the contention that where the authority has failed to record finding about the date of construction of premises in dispute, the matter required to be sent back to the authority below for a fresh decision.

1.ARC 1982 (2) 617,Saleem vs. District Judge, Muzaffarnagar.

2.SCC 1980 (3) 452, Sri Ram Saroop Rai vs. Smt. Lilavati.

3.UPRCC 1978, 706, Ram Babu vs. Jagannath Prasad & another.

The judgments relied upon by the learned counsel for the petitioner do not help the petitioner inasmuch as they are clearly distinguishable on facts. This is a case of no evidence as recorded by the Rent Control & Eviction Officer and also apparent from the record of the petition.

Having considered the submissions, I am of the view that the petitioner has failed to make out a point with regard to his contention regarding applicability of the Act on account of new construction. From the perusal of the petition, the contention raised by the petitioner regarding age of construction does not appear to be worth consideration. Only a bald assertion has been made without any supporting documents.     His contention was, accordingly, disbelieved by the Rent Control & Eviction Officer. Even before this Court the petitioner has not been able to bring on record any evidence to establish that the constructions have been made in the year 1991 to show the building in question was out of purview of the Act. On the contrary, the respondent No. 3 landlady has filed evidence along with counter affidavit to show that the premises in dispute was an old construction and covered by the provisions of the Act.

The petitioner has not been able to make out a case for remand to the Rent Control & Eviction Officer for recording any fresh finding regarding constructions.

Now coming to the second contention it will come into play only when the occupant is able to make out a prima facie case to continue in possession. The counsel for the respondent has contended that the petitioner was continuing to occupy the premises against the wishes of the landlady. It has been submitted that upon his transfer to Kanpur the petitioner was given the premises for a period of one month to enable him to locate another suitable accommodation. However, the petitioner after expiry of one month did not vacate and continued to occupy despite request to vacate. It is further submitted that petitioner who is in the U.P. Police department is using his position to threaten and harass the landlady and her family members. In the circumstances there can be no good ground to permit the petitioner to continue in the premises in dispute.

In reply to the contention regarding adjournment of the hearing of the petition on account of reference to a larger Bench in the case of Ajai Pal Singh (Supra) it has been submitted by the learned counsel for the respondent that merely because a reference has been made to a larger Bench, the landlady cannot be deprived of her right to enjoy her property which has been validly released in accordance with law in her favour. The decision which may be taken by the larger Bench will have its effect prospectively and that too in the facts and circumstances of each case. As on the date of the release order, there was no such reference and therefore there is no justification for deferring the hearing of the petition.

There is substance in the contention of the respondent. An unauthorised occupant in possession of the premises against the will of the landlord cannot be granted any indulgence by this Court and that too on an expected finding to be recorded in future. Even otherwise the unauthorised occupant cannot object to the release of the premises in favour of the landlord. Thus also the reference to the larger Bench does not give any benefit to an unauthorised occupant. The contention is accordingly rejected.

The petition being devoid of merits is, accordingly, dismissed.

Dated:  20.12.2004

v.k.updh. (v-21)



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