Ram Gopal Pal And Ors. vs District Judge Lucknow And Ors.
2013 Latest Caselaw 4160 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?AFR 
 
Court No. - 14
 

 
Case :- RENT CONTROL No. - 115 of 2012
 
Petitioner :- Ram Gopal Pal And Ors.
 
Respondent :- District Judge Lucknow And Ors.
 
Counsel for Petitioner :- Brijesh Kumar Saxena,Ankit Srivastava,Muhiuddin Khan,Ritesh Srivastava
 
Counsel for Respondent :- Manish Kumar,Pritish Kumar
 

 
Hon'ble Saeed-Uz-Zaman Siddiqi,J.

By means of this writ petition, the petitioners have sought for writ in the nature of certiorari quashing the judgment and order dated 01.10.2012 passed by District Judge, Lucknow in Small cause case no. 61 of 2005 and judgment and decree dated 10.08.2005 passed by Judge, Small Cause Court, Lucknow in Small Cause Case suit No. 112 of 2004. 

Brief facts of the case are that, admittedly, the petitioners are the tenant of the disputed property situated at Banarasi Bagh, which comprises a restaurant hall in an area of 600 sq. feet, open area of 300 sq. feet and one kitchen of 96 sq. feet. The said property was leased out to the petitioners for three years on 16.02.1983, which expired on 16.02.1986. After expiry of the lease deed, the tenant petitioners filed suit for injunction against the opposite parties bearing regular suit No. 211 of 1986, which is still pending. It is to be mentioned here that the disputed premises is owned by Prince of Wales Zoological Garden Trust which was created by Government of Uttar Pradesh in 1950 under the Charitable Trust Act, 1890 and his Excellency the Governnor has changed the management scheme of the Trust vide government order no. 6716/XIV-3-94-76. In view of this fact, the provisions contained in U.P. Act No. 13 of 1972 apply to the disputed premises.  The landlord served with the notice under Section 106 of Transfer of Property Act terminating the lease deed on 04.06.2004 through Registered post which was served and his reply was also received through his council. The petitioners contested the case inter alia, on the grounds that the lease deed was executed between the parties for three years which should have been registered.  The sale deed is not registered, hence it is admissible in the evidence that the suit has been filed for recovery of rent and eviction in the Court of Judge, Small Cause Court, which has got not jurisdiction to try the suit; that as per the landlord, the petitioners have become unauthorized occupant after 16.02.1986 and, as such, they have served notice under Section 116 of the Transfer of Property Act and a number of other legal pleas were taken which are not relative for deciding this writ petition.  The learned Trial Court dismissed the suit of the plaintiff against which the landlord preferred revision before the learned District Judge, Lucknow who has allowed the same and the suit has been decreed.

I have heard learned counsel for both the parties and have gone through the records.

Admittedly, the disputed property belongs to a Charitable trust.  A perusal of the writ petition and the pleadings show that the petitioners being tenants have decided not to vacate the disputed premises, come what may, the petitioners have approached the Hon'ble Apex Court against an interim order directing the petitioners to pay Rs. 12,000/- per month as rent.  Further orders subject to final decision which was reduced by the Hon'ble Apex Court to Rs. 8,000/- in SLP No. (S). 15674 of 2008.  It is abundantly clear that provisions of U.P. Act No. 13 of 1972 are not applicable to the disputed premises.  The validity of notice has not been challenged before this Court.  In either case, none-registration of rent deed is of no consequences which shall not entitle the petitioners to continue to be in possession.  The petitioners are equally guilty of not getting the lease deed registered.  The opposite party No. 3/landlord is also equally guilty.  When both the persons to the suit are guilty of all side tracking the provisions contained in Registration Act, no party can be allowed to derive the benefit out of the said misdeed.

This court has held in Smt. Prakash Rani @ Prakashwati vs. VIth A.D.J. Bulandshahar [2006 (64) ALR 592], which is as under:-

"The finding of the Revisional Court while allowing the revision of the tenant to the effect that even though U.P. Act No. 13 of 1972 was not applicable to the building in dispute, still tenant was not liable to eviction, as he was not defaulter, in patently erroneous in law.  If Rent Control Act is not applicable then tenant is liable to eviction after termination of his tenancy.  No contrary agreement was pleaded or shown by the tenant.  After termination of tenancy tenant can protect his possession only in two contingencies.  Firstly, when some Rent Control Act gives protection to him and secondly if there is any contrary agreement.  In the instant case none of the two contingencies exist."

In Shital Prasad vs. Rent Control And Eviction/Addl. City Magistrate (First) Kanpur, this court has held as under:-

"I have heard learned counsels for respective parties and gone through the written submissions as well as other documentary evidence. So far first objection regarding Section 15 of the Act is concerned mentioning the period of limitation, I do not agree with submission of the counsel for petitioner. Section 15 is only an obligation on the landlord/tenant to intimate vacancy to the District Magistrate. Landlord is given benefit under Section 17 of the Act to nominate tenant of his own choice provided he has intimated vacancy under Section 15 of the Act within 7 days ( not 15 days as asserted on behalf of petitioner). There is no limitation provided. It is settled principle of law that if a tenant is inducted after commencement of the Act without an allotment order by consent of landlord, tenant cannot claim any protection under the Act whatsoever."

In spite of lengthy arguments, learned counsel for the petitioners could not point out any illegality, infirmity or perversity in the order passed by the learned Revisional Court.  It is not required for this Court to sit in Appeal and hear the writ petition like an appeal in disguise.  Moreover, in Small Cause Case, even judgment of the learned Trial Court as well as the learned Revisional Court need not give reasoning as required by sub-rule (1) of Rule 4 of order XX of the Code of Civil Procedure.  Hon'ble Apex court has dealt with the subject in Surya Dev Rai vs. Ram Chandra Rai and Ors. [2003 SAR Civil-708], which is as under:-

"According to Corpus Juris Secundum (Vol.14, page 121) certiorari is a writ issued from a superior court to an inferior court or tribunal commanding the latter to send up the record of a particular case.

H.W.R. Wade & C.F. Forsyth define certiorari in these words :-

"Certiorari is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed that is to say, it is declared completely invalid, so that no one need respect it.

The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion." (Administrative Law, Eighth Edition, page 591)."

In Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors., (1958) SCR 1240, the parameters for the exercise of jurisdiction, calling upon the issuance of writ of certiorari where so set out by the Constitution Bench :

"The Common law writ, now called the order of certiorari, which has also been adopted by our Constitution, is not meant to take the place of an appeal where the Statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essentialrequirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extra-ordinary jurisdiction. Where the errors cannot be said to be errors of law apparent on the face of the record, but they are merely errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inference or in other words errors which a court sitting as a court of appeal only, could have examined and, if necessary, corrected and the appellate authority underThe Constitution Bench in T.C. Basappa Vs. T. Nagappa & Anr., (1955) 1 SCR 250, held that certiorari may be and is generally granted when a court has acted (i) without jurisdiction, or (ii) in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceedings or from the absence of some preliminary proceedings or the court itself may not have been legally constituted or suffering from certain disability by reason of extraneous circumstances. Certiorari may also issue if the court or tribunal though competent has acted in flagrant disregard of the rules or procedure or in violation of the principles of natural justice where no particular procedure is prescribed. An error in the decision or determination itself may also be amenable to a writ of certiorari subject to the following factors being available if the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law but a mere wrong decision is not amenable to a writ of certiorari. a statute in question has unlimited jurisdiction to examine and appreciate the evidence in the exercise of its appellate or revisional jurisdiction and it has not been shown that in exercising its powers the appellate authority disregarded any mandatory provisions of the law but what can be said at the most was that it had disregarded certain executive instructions not having the force of law, there is not case for the exercise of the jurisdiction under Article 226."

"The Constitution Bench in T.C. Basappa Vs. T. Nagappa & Anr., (1955) 1 SCR 250, held that certiorari may be and is generally granted when a court has acted (i) without jurisdiction, or (ii) in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceedings or from the absence of some preliminary proceedings or the court itself may not have been legally constituted or suffering from certain disability by reason of extraneous circumstances. Certiorari may also issue if the court or tribunal though competent has acted in flagrant disregard of the rules or procedure or in violation of the principles of natural justice where no particular procedure is prescribed. An error in the decision or determination itself may also be amenable to a writ of certiorari subject to the following factors being available if the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law but a mere wrong decision is not amenable to a writ of certiorari."

On the basis of discussions made above, the writ petition deserves to be dismissed and is hereby dismissed with cost.

Order Date :- 15.7.2013

Nitesh