Tara Begum vs Additional District Judge / ...
2021 Latest Caselaw 10061 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                         Reserved on :-30.7.2021
 
                                                                                                     								Delivered on :-  11.8.2021
 

 
Case :- WRIT - A No. - 4771 of 2021
 

 
Petitioner :- Tara Begum
 
Respondent :- Additional District Judge / F.T.C. -41 (Offence Against Women) And 4 Others
 
Counsel for Petitioner :- Narendra Mohan,Mohd. Akaram
 
Counsel for Respondent :- Manish Tandon
 

 
Hon'ble Siddharth,J.

Heard Sri Narendra Mohan, learned counsel for the petitioner and Sri Manish Tandon, learned counsel for the respondent nos. 3 to 5.

This writ petition is directed against the impugned order dated 16.6.2016 declaring the vacancy and order dated 26.7.2017 releasing the accommodation in favour of the respondents no. 3 to 5 by the Rent and Control and Eviction Officer/Additional City Magistrate(III) Kanpur Nagar in case no. 8 of 2014 under section 12 of the U.P. Act no. 13 of 1972 and judgment and order dated 16.1.2021 passed by the Additional District Judge/F.T.C.-41 (Crime against Women)Kanpur Nagar in Rent Revision No. 30 of 2017.

The petitioner is a tenant of residential accommodation, house no. 99/99, Munnapurva Belanganj, Kanpur Nagar and the respondent nos. 3,4and 5 are the landlords of the same.

An application for allotment of the aforesaid house was made by one Mumtaj Ahmad before the Rent Control and Eviction Officer, Kanpur Nagar.The Rent Inspector went to inspect the premises where petitioner was found and she informed the Rent Inspector that she is living in the house for about last 20 years along with her family as tenenat.Earlier she used to pay rent to Mohammad Hussain and after his death to his son, Nabi Hussain, who has also died.After his death, she is depositing the rent in the court.The respondent no.4, Jareen Anees Siddqui, informed the Rent Inspector that she alongwith her two sisters,namely, Yasmeen Anees Siddqui and Jeva Anees Siddqui, are the owners of the house in dispute on the basis of registered sale deed dated 16.1.2010. Petitioner is residing unauthorizedly in the accommodation. The Rent Control and Eviction Officer found that the respondent nos. 3,4 and 5 are the owners of the property and duly recorded in Nagar Nigam.The possession of the petitioner is without any allotment order. Even if the statement of the tenant is believe that she is in possession over the house in dispute for the last 20 years,it is proved from the year 1994, which is not before 5.7.1976.By the order dated 16.6.2016 the house in dispute was declared vacant by the Rent Control and Eviction Officer, Kanpur Nagar. The respondent nos. 3,4,5 filed a release application under section 16(1)(b) of U.P. Act No. 13 of 1972 stating that the accommodation has been declared vacant and they need the accommodation. They have only two rooms in the house in dispute to live when they are three in number and the accommodation is insufficient for their need and living.They need at least one room each for bedroom, one room for drawing room, and one room for guest room and they are living in great difficulty in two rooms.Therefore they have genuine, immediate and pressing need of the accommodation in dispute and same may be released in their favour.

By the order dated 26.7.2017 of Rent Control and Eviction Officer the release application of the respondent nos.3,4 and 5 was allowed and the accommodation in possession of the petitioner,consisting of tree rooms was released in favour of the aforesaid respondents by the Rent Control and Eviction Officer.

In the release proceedings before the Rent Control and Eviction Officer a rent agreement dated 15.6.1971 was filed by the petitioner proving that Mohammad Hussian , landlord of the house in dispute, had let out the premises in dispute to the petitioner @ Rs. 50/- per month.

Petitioner preferred Rent Revision No.30 of 2017 against the order of release dated 26.7.2017 of Rent Control and Eviction Officer and also the order of vacancy dated 16.6.2016 passed by the Rent Control and Eviction Officer claiming that she had taken the house in dispute on rent about 45 years ago from Mohammad Hussain on rent @ Rs.50/- per month. After the death of Mohammad Hussain, his son Nabi Hussain increased the rent to Rs. 150/- per month.She is tenant of one room and she got two rooms constructed with the permission of Nabi Hussain on 19.2.2003. The order of the vacancy is ex parte and the release application has wrongly been allowed.

The revisional court found that section 11 of the U.P. Act No.13 of 1972 provides that no person shall let any building except in pursuance of the allotment order issued under section 16 of the U.P. Act No.13 of 1972.The Rent Control and Eviction Officer found that tenant is residing in the house from the year 1994 without any allotment order.Therefore her possession without any allotment after 5.7.1976 is illegal and vacancy has rightly been declared.

The revisional court further found that the document dated 9.2.2003 whereby the tenant claimed that she has got two rooms constructed with the permission of the landlord is an unregistered document and no benefit of the same can be given to the petitioner for the purpose of excluding the accommodation from the preview of U.P. Act No. 13 of 1972.Finally revisional court held that the order of release has been passed by the Rent Control and Eviction Officer after considering the need set up by the respondent nos. 3,4 and 5 and there is no infirmity in the same.

Learned counsel for the petitioner has submitted that from the rent deed dated 15.6.1971 it was clear that the petitioner was tenant of the premises in dispute since before 5.7.1976 and her tenancy stood regularized .The rent deed dated 15.6.1971 was filed before the Rent Control and Eviction Officer but it was not considered at all either by the Rent Control and Eviction Officer or by the revisional court. Mumtaz Ahamad, who filed allotment application never turned up to press the same and he was set up by the respondent nos. 3,4 and 5.The Rent Control and Eviction Officer wrongly gave the report that petitioner admitted her possession since last 20 years when she stated that she is in possession for the last 45 years.In case the rent deed dated 15.6.1971 had been taken into account by the courts below , the benefit of section 14 of the U.P. Act No. 13 of 1972 would have accrued to the petitioner.

Petitioner will face tremendous hardship in case she is compelled to vacate the premises in dispute since she is living in the accommodation along with her son, brother and widow sister having three minor children.

Learned counsel for the respondent nos. 3 to 5 has submitted that rent deed dated 15.6.1971 was filed for the first time before the Rent Control and Eviction Officer in the release proceedings under section 16(1) (b) of U.P. Act No. 13 of 1972 by the petitioner.Prior to that the document was not brought on record in proceedings under section 16(1) (a) of the aforesaid Act. He has further submitted that the rent deed filed before the Rent Control and Eviction Officer was a photocopy and unregistered document.It required to have been registered since it was not confined to 11 months period of tenancy. He has submitted that even if the argument of learned counsel for the petitioner is accepted that the aforesaid rent deed was not considered by the Rent Control and Eviction Officer and also the revisional authority, it will not effect the merits of the judgement impugned, keeping in view the nature of the document. He has relied upon the judgement of this court in Mohd. Sakib Vs. Rent Control & Eviction Officer/A.C.M. 5th and 4 others, 2016(2) ARC,287 wherein this court found that a rent deed drawn on plain paper, which is neither registered document nor an affidavit, have no evidentiary value,therefore, learned counsel for the respondents has submitted that rent deed dated 15.6.1971 was of no consequence and if it has been ignored by the Rent Control and Eviction Officer and the revisional court, being an inadmissible document no prejudice can be set to have been caused to the rights of the petitioner. He has further relied upon the judgment of this court in Shyam Lal Vs. Rent Control and Eviction Officer/Additional District Magistrate VII and 3 others, 2018 (3) ARC,213 and has submitted that this court has held in this case that where the tenant failed to prove that he was tenant prior to 1976, the protection of section 14 of U.P. Act No. 13 of 1972 shall not be granted to him.

After considering the rival submissions, this court finds that petitioner has failed to prove that she is tenant of the disputed accommodation since before 5.7.1976.The argument of the learned counsel for the petitioner is that the rent deed dated 15.6.1971 filed before the Rent Control and Eviction Officer in release proceedings was not taken into account nor it was considered by the revisional court appears to be attractive on the first blush but the fact remains that the aforesaid rent deed was drawn on stamp paper of Rs. 1/- with notarial stamps affixed and filed before the Rent Control and Eviction Officer along with affidavit of the petitioner. A rent deed of more than 11 months period requires registration which was not proved in this case.Only photocopy of rent deed was filed. This court in the case of Mohd. Sakib Vs. Rent Control & Eviction Officer/A.C.M. 5th and 4 others(Supra) found such a document to be of no evidentiary value. A photocopy of the agreement made on stamp papers of Rs.10 dated 19.2.2003 was also brought on record to show that Nabi Hussain son of the original landlord had granted permission to make further constructions of two rooms to the petitioner. The revisional court has considered the second document dated 19.2.2003 and has recorded the finding that it does not proves that new construction in the accommodation in dispute was made. It has found that the document is unregistered the need of the landlords were found to be correct

The submission of learned counsel for the petitioner is that the statement of the petitioner was wrongly recorded by the Rent Control and Eviction Officer that she is residing in accommodation for the last 20 years,when she had stated before him that she is residing for the last 45 years has no substance. This ground was taken for the first time before the revisional court and the petitioner never stated this fact before Rent Control and Eviction Officer disputing the statement recorded by the Rent Control and Eviction Officer. Hence it is clear that finding of the Rent Control and Eviction Officer and also revisional court do not suffer from any perversity or legal infirmity.

Learned for the petitioner has submitted that petitioner is a women. She is living in the disputed accommodation with her son,brother and widow sister having three minor children and it would be difficult for her to immediately vacate the house since it would be difficult for her to arrange new accommodation. She has prayed that two years' time may be granted to her to vacate the premises in dispute.

Learned counsel for the respondent nos. 3 to 5 has opposed the aforesaid prayer made by the learned counsel for the petitioner.

Keeping in view of the facts and circumstances of the case and the submission of the learned counsel for the parties it is directed that in case petitioner submits an undertaking before the Rent Control and Eviction Officer,Kanpur Nagar within three weeks from the date of order that she will handover the vacant possession of the house in dispute to the respondent nos. 3 to 5 peacefully after vacating the same within a period of twelve months, she shall not be evicted from the house in dispute, for a period of twelve months. She will pay the rent of the accommodation to the respondent nos.3 to 5 at the rate of Rs. 500/- per month till the accommodation is finally vacated.

However in case of failure to furnish undertaking as provided above and making of payment of rent, the protection granted to the petitioner regarding twelve months stay shall become ineffective and it shall be open for the respondent nos. 3 to 5 to get the house vacated in accordance with law.

The petition fails and is accordingly dismissed, subject to the above direction of twelve months conditional stay of eviction.

Order Date :-11.8.2021

Atul kr. sri.