SHITAL PRASAD vs R. C. AND E. O. /ADDITIONAL CITY MAGISTRATE (FIRST) KANPUR NAGAR

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(All) 526

[2010(3) ADJ 328]
ALLAHABAD HIGH COURT
BEFORE : MRS. POONAM SRIVASTAV, J.
SHITAL PRASAD ....Petitioner
Versus
R.C. AND E.O./ADDITIONAL CITY MAGISTRATE (FIRST) KANPUR NAGAR AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 32786 of 1998, decided on 8th February, 2010)

Advocates:
Counsel :
G.L. Tripathi, Virendra Pandey for the Petitioner; P.N. Khare, C.S.C. for the Respondents.

Headnote:(A) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972—Sections 14, 15, 17, 2(2), Explanation (1)—Declaration of vacancy—Accommodation in question—If a tenant is inducted after commencement of Act, without an allotment order by consent of landlord, tenant cannot claim any protection under Act whatsoever—Year of induction as tenant as a held by R.C. & E.O. is 1978—Therefore, no benefit of Section 14 of Act can be availed—Tenant has also moved an application with a prayer to grant regularisation under Section 14 of Act—To be misconceived—No doubt, benefit of regularisation can be granted in a proceedings but no separate proceedings for regularisation of tenancy can be initiated merely on basis of an application moved with a prayer to allow beneit of Section 14—In view of findings that tenant came in occupation in year 1978, argument of petitioner-tenant that tenancy stands regularised is of no consequence—Impugned order of R.C. & E.O./Addl. City Magistrate, does not call for any interference under Article 226 of Constitution. [Paras 18, 19, 20, 21 and 26]
       (B) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972—Sections 14, 15, 17, 2(2), Explanation (1)—Declaration of vacancy—Period of limitation—It is nowhere provided that there is period of limitation for initiating proceedings for declaration of vacancy—Question of limitation for initiating allotment proceedings is nowhere provided in Act—Period of 10 years is only regarding applicability of Act—Vacancy has been declared on an application of allotment moved by outsider, and claim of petitioner that it was at instance of landlord, cannot be accepted—In instant case, first assessment being in year 1958-63, Act was very well applicable on date when petitioner was inducted as a tenant—No doubt, he was inducted as a tenant by landlord, but it cannot be accepted that a wrong committed by landlord inducting tenant without an allotment order can be legalized and law will permit illegality to continue—Two “Wrongs will not make one” right. [Paras 22, 23 and 24]
       (C) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972—Sections 2(2), Explanation (1)—Exemption clause of Act—New or old construction—Question of fact—And, would also depend upon nature and extent of addition and alteration made in building—It is a mixed question of fact and law—A conclusion has been arrived at that no new construction was made as claimed by tenant-petitioner, and accordingly question of applicability of Act has been decided—Thus, contention of tenant-petitioner regarding exemption Clause of Act that Section 2(2), Explanation (1), which relates to a new construction, is of no consequence as regards present case. [Para 25]

JUDGMENT

Hon’ble Mrs. Poonam Srivastav, J.—Heard Sri G.L. Tripathi, Advocate appearing for tenant/petitioner and Sri P.N. Khare, Advocate, appearing for landlord/respondents.

2. The order impugned in the instant writ petition is dated 17.9.1998 declaring vacancy by Rent Control and Eviction Officer/ Additional City Magistrate 1st, Kanpur Nagar, in respect of accommodation of premises No. 106/179 Gandhi Nagar, Kanpur Nagar (hereinafter referred to as the disputed accommodation). Vacancy declared was in respect of one room, one store, latrine, bathroom, kitchen and a small open area situated on the first floor.

3. Assertion made in the writ petition on behalf of the tenant is that Chandrika Prasad was the erstwhile owner/landlord of premise No. 106/179 which was let out on monthly rent @ of Rs. 225/- since before July, 1978. It is admitted by parties that rate of rent is Rs. 275/- per month. The instant proceedings commenced on an application for allotment moved by one Sita Ram Bhatnagar and S. Datar. Rent Control and Eviction Officer respondent No. 1 called for a report from Rent Control Inspector. Report dated 6.9.1995 was submitted by him, which is annexed as annexure No. 1 to the writ petition.

4. Petitioner filed his objection to the aforesaid report on 27.2.1996 claiming to be a valid tenant. Assertion was that initially no rent receipt was given but subsequently rent receipts were issued by Chandrika Prasad. Claim of tenant was that he came in occupation of the disputed accommodation since before July, 1976 with consent of landlord, therefore, his tenancy stands regularized. There is no vacancy whatsoever. Objection is annexed as annexure No. 2 to the writ petition.

5. Affidavit of petitioner in support of the said objection is also part of the present writ petition. In support of petitioner’s case, Smt. Rambha Devi and Laxmi Shanker Awasthi filed separate affidavit date 12.8.1996 claiming that they have seen petitioner residing in the disputed premises since before 1976 and original landlord Chandrika Prasad (now deceased) was regularly issuing rent receipts.

6. Respondent No. 2 Mukesh Kumar Saxena disputed all the claim of petitioner made in the aforesaid affidavits. It was unequivocally asserted in his affidavit dated 30.10.1995 that petitioner was inducted as a tenant in the year 1978 at the rate of rent of Rs. 275/- per month by one of his family members without an allotment order as they were unaware of the provisions of Act.

7. Respondent No. 4 also filed a detailed rejoinder affidavit dated 13.11.1996 controverting assertion of Rambha Devi and Laxmi Shanker Awasthi. Supplementary rejoinder affidavit dated 19.5.1997, which is annexure No. 9 to the writ petition, was also brought on record. Besides, an application dated 30.5.1997 annexure No. 10 to the writ petition was filed by the petitioner with a prayer that tenancy of petitioner may be regularized under Section 14 of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) and there is no vacancy. This affidavit is annexed as annexure No. 11 to the writ petition.

8. On perusal of the said affidavit, it transpires that tenant/petitioner asserted that accommodation in question is a new construction and Rent Control Act is not applicable, therefore, vacancy cannot be declared. This fact was controverted by respondent No. 4 as claim of landlord is that constructions are prior to 1958-63 as already assessed except some minor repair and alteration on account of wear and tear of the building.

9. Petitioner’s objection regarding date of construction of the disputed accommodation was raised for the first time on 30.5.1997 with an assertion that the disputed accommodation was assessed for the first time in the year 1975.

10. Rakesh Saxena respondent No. 4 disputed the aforesaid assertion by stating in his affidavit that no living portion of the first floor of premises is new construction. Portion claimed by landlord to be newly constructed was assessed in the previous

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Judicial Analysis

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2010 Supreme(All) 526

[2010(3) ADJ 328]ALLAHABAD HIGH COURTBEFORE : MRS. POONAM SRIVASTAV, J.SHITAL PRASAD ....PetitionerVersusR.C. AND E.O./ADDITIONAL CITY MAGISTRATE (FIRST) KANPUR NAGAR AND OTHERS ....Respondents(Civil Misc. Writ Petition No. 32786 of 1998, decided on 8th February, 2010)

Judicial Analysis

[2010(3) ADJ 328]
ALLAHABAD HIGH COURT
BEFORE : MRS. POONAM SRIVASTAV, J.
SHITAL PRASAD ....Petitioner
Versus
R.C. AND E.O./ADDITIONAL CITY MAGISTRATE (FIRST) KANPUR NAGAR AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 32786 of 1998, decided on 8th February, 2010)