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2006 Supreme(All) 461

[2006(2) ADJ 366 (All)]
ALLAHABAD HIGH COURT
BEFORE : S.U. KHAN, J.
SHEKHAR BAHUGUNA ....Petitioner
Versus
VI ADDITIONAL DISTRICT JUDGE, ALLAHABAD AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 38371 of 1992, decided on 14th February, 2006)

Advocates:
Counsel :
Shashi Nandan and Sanjiv Kumar for the Petitionr; Kripa Shanker Singh for the Respondents.

IMPORTANT POINT
Mutation is affected by municipal authorities in respect of occupation of house situate within municipal limits. R.C. & E.O. has got no business to affect mutation.

Headnote:(A) Constitution of India, Article 226—Prohibition—Writ of—Harassment, perceived or real is not a ground for issuing writ of prohibition. [Para 11]
       (B) Practice and Procedure—Invoking writ jurisdiction and setting the proceedings in Court below stayed on insufficient ground was a pure harassment of the landlord by the tenant. [Para 12]
       (C) Constitution of India, Article 226—Writ jurisdiction—Exercise of—Principles of C.P.C. apply but not its rigours. [Para 13]
       (D) Constitution of India, Article 226—Civil Procedure Code, 1908, Section 95—Writ petition—Filing of and obtaining stay order, remained in operation for 14 years—Utter abuse of process of the Court—Petitioner is liable to pay reasonable damages/compensation to opp. party/landlord—Amount of compensation determined Rs. 75,000/-. [Para 13]
       (E) Mutation—R.C. & E.O. has got no business to affect 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. [Para 14]
       (F) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972—Section 16(5)—Application under—For recall of order whereby R.C. & E.O. allotted building in favour of those heirs of deceased tenant who normally resided with him in the building at the time of his death—Not a fresh allotment order—Other two heirs of deceased tenant acquiesced and raised no objection to sole tenancy—No useful purpose will be served by keeping the matter of review before R.C. & E.O. alive—Writ of prohibition issued—No further proceeding shall be taken in that respect—After death of the original tenant only two persons who were declared earlier should be deemed to be the tenant of the accommodation in dispute. [Para 14]
       (G) Rent Control Act—Suffers from great lacuna—No provision of fixing of reasonable rent and for periodical enhancement of rent—Giving rise to extremely undesirable illegal practices in the society. [Para 15]
       (H) Constitution of India, Article 226—Writ jurisdiction—Exercise of—Competency to enhance the rent to a reasonable extent—Court empowered while hearing matters in respect of landlord and tenant—To adjust equities in between the parties. [Paras 15 and 16]

JUDGMENT

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.

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

3. 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).

4. 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.

5. 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 85 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 85 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.

6. 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 sai

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2006 Supreme(All) 461

[2006(2) ADJ 366 (All)]ALLAHABAD HIGH COURTBEFORE : S.U. KHAN, J.SHEKHAR BAHUGUNA ....PetitionerVersusVI ADDITIONAL DISTRICT JUDGE, ALLAHABAD AND OTHERS ....Respondents(Civil Misc. Writ Petition No. 38371 of 1992, decided on 14th February, 2006)

IMPORTANT POINTMutation is affected by municipal authorities in respect of occupation of house situate within municipal limits. R.C. & E.O. has got no business to affect mutation.

Cases Referred (2)

[2006(2) ADJ 366 (All)]
ALLAHABAD HIGH COURT
BEFORE : S.U. KHAN, J.
SHEKHAR BAHUGUNA ....Petitioner
Versus
VI ADDITIONAL DISTRICT JUDGE, ALLAHABAD AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 38371 of 1992, decided on 14th February, 2006)

IMPORTANT POINT
Mutation is affected by municipal authorities in respect of occupation of house situate within municipal limits. R.C. & E.O. has got no business to affect mutation.