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2006 Supreme(All) 897
[2006(9) ADJ 20 (All)]
ALLAHABAD HIGH COURT
BEFORE : S.U. KHAN, J.
HOTILAL SHARMA .Petitioner
Versus
SUB-DIVISIONAL MAGISTRATE, MATHURA AND OTHERS .Respondents
(Civil Misc. Writ Petition Nos. 33384 of 1991 and 12082 of 1993,
decided on 27th March, 2006)
R.K. Jain, A.S. Rai, Pankaj Misra and A.K. Singh for the Petitioner; R.P. Goyal, S.S. Sharma, B.L. Agrawal, A.K. Mishra, C.S.C., for the Respondents.
IMPORTANT POINT
A tenant who does not pay rent for 15 years is debarred from envoking writ jurisdiction of the High Court as equitable consideration is paramount in exercise of writ jurisdiction.
Headnote:(A) Constitution of India, 1950—Article 226—Writ jurisdiction—Non-payment of rent for several years, despite the same being highly inadequate—Not in the interest of justice to grant the tenant equitable relief in exercise of writ jurisdiction—Even if the order challenged in the writ petition is illegal—Tenant behaving in a highly unjust manner—Writ Court may refuse to set aside such order—Inactiveness of tenant debars him from envoking writ jurisdiction. [Paras 9 to 11]
(B) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972—Section 30—Landlord refuses to give receipt of rent—Tenant may send the rent through money order or deposit the same under Section 30 of the Act. [Para 8]
Hon’ble S.U. Khan, J.—First writ petition is directed against the order dated 15.11.1991 passed by Rent Control and Eviction Officer /Sub Divisional Magistrate, Math district Mathura in the case of Anil Kumar Agarwal v. Mor Mukut Sharma and two others. Through the said order house in dispute viz. House No. 90-A Govind Nagar Mathura has been declared vacant. However through the said order release application of the landlord under Section 16(1) (b) of the Act was also rejected after recording the finding that Rent Control and Eviction Officer was not satisfied that landlord bonafidely required the same. Against order rejecting the release application landlord - Anil Kumar Agarwal filed civil (Rent Control) Revision No. 213 of 1991. District Judge, Mathura through judgment and order dated 21.1.1993 allowed the revision, set aside that part of the order dated 15.11.1991 passed by R.C. & E.O. through which release application had been rejected. District Judge further directed that in case writ petition filed against that part of the impugned order dated 15.1.1991 through which vacancy was declared (i.e. this writ petition No. 33384 of 1991) was dismissed then R.C. & E.O. should re-consider release application. District Judge allowed the revision on 21.1.1993.
2. The vacancy was declared on the ground that Mor Mukut respondent No. 5 was the tenant of the accommodation in dispute and he had admittedly constructed a house in the same city. The case of Mor Mukut Sharma was that he was not the tenant of the house in dispute but his father i.e. Hotilal Sharma the petitioner was a tenant. Petitioner also took up the same case and asserted that it was he who was the tenant and not his son Mor Mukut Sharma hence no vacancy occurred due to construction of house by Mor Mukut Sharma, as he was not dependent upon him and he had constructed the house after taking loan from the Bank. The case of the landlord was that Mor Mukut Sharma was tenant since June 1978.
3. Initially Shivadhar Misra was the owner landlord of the house in dispute whose father had let out the same. Shivadhar Misra on 25.1.1988 executed an Agreement for sale in favour of respondents 2 to 4 Anil Kumar Agarwal, Girish Kumar Agarwal and Rajendra Kumar Agarwal all sons of Bhikkhilal Agarwal. Shivadhar Misra on the same date i.e. 25.1.1988 executed a Power of Attorney in favour of Bhikkhilal Agarwal, i.e. Father of respondents 2 to 4. Acting upon the said power of attorney and on the basis of the said Agreement Sri Bhikkhilal Agarwal executed a registered sale deed in respect of the house in dispute in favour of his sons on 21.1.1989.
4. Earlier one Ravindra Pandey had applied for the allotment of the house in dispute on that very ground which was subsequently taken up by respondents 2 to 4 i.e. house in dispute was in tenancy occupation of Mor Mukut Sharma and he had constructed his own house, hence house in dispute was vacant. The said allotment application was rejected by Rent Control and Eviction Officer on 22.9.1988 holding that there was no vacancy.Thereafter Ravindra Pandey on 6 or 27th October, 1988 filed a review petition which was rejected on 22.6.1989 by Rent Control and Eviction Officer. Thereafter on 27.6.1989 release application was filed by respondents 2 to 4 on which impugned order dated 15.11.1991 was passed.
5. In the earlier proceedings it was held by Rent Control and Eviction Officer that it was Hotilal Sharma who was the tenant and not Mor Mukut Sharma, hence allotment application of Ravindra Pandey was dismissed on the ground that there was no vacancy.
6. In the impugned order after discussing the material brought on record by the parties Rent Control and Eviction Officer held that until 1988 Hotilal Sharma was not residing in the house in dispute. In respect of contrary judgment and finding of his predecessor in earlier proceedings, R.C. & E.O. held them to be wrong and not binding upon him.
7. Learned Counsel for the petitioner has firstly argued that th
