Allahabad High Court
Shri Shree Chand Jain vs Rent Tribunal13Th Adj Agra And 3 Others on 22 May, 2024
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Neutral Citation No. - 2024:AHC:92138
Court No. - 50
Case :- MATTERS UNDER ARTICLE 227 No. - 6277 of 2024
Petitioner :- Shri Shree Chand Jain
Respondent :- Rent Tribunal13th Adj Agra And 3 Others
Counsel for Petitioner :- Sudeep Harkauli
Hon'ble Neeraj Tiwari,J.
1. Heard Sri Sudeep Harkauli, learned counsel for the petitioner and Sri I.P. Srivastava, learned Additional Chief Standing Counsel for the State.
2. Present petition has been filed with the following prayers:-
"(i) To direct the Rent Tribunal to decide the Rent Control Appeal No.56 of 2023 within a time bound period of 60 days as provided in the Act.
(II) To direct the Rent Tribunal to return the records of the case under Appeal No. 56 of 2023 and under all other similar appeals to the Rent Authority so that case can be adjudicated there, and to direct the Rent Tribunal not to unnecessary summons records of the cases pending before the Rent Authority or summon only copies of the record from Rent Authority if at all required giving specific reasons as to why the copy of the record is required/necessary for deciding the appeal.
(iii) To direct the Rent Tribunal to comply with the provisions of mandatory deposit of 50% of the amount as required under the Act."
3. Sri Sudeep Harkauli, learned counsel for the petitioner submitted that after repealing of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U.P. Regulation of Urban Premises Tenancy Act, 2021 (hereinafter referred to as Act, 2021) has been enacted and also U.P. Regulation of Urban Premises Tenancy Rules, 2021 (hereinafter referred to as Rules, 2021) framed thereunder. He next submitted that petitioner has filed an application under Section 10 of Act, 2021, which was numbered as Case No. 5808 of 2022. In the said case, order dated 16.9.2022 has been passed fixing the interim rent at the rate of Rs. 750/- per square feet. Thereafter, respondent has filed an application to recall the order dated 16.9.2022. He has also approached this Court by filing Writ-A No. 12100 of 2023, which was disposed of vide order dated 26.7.2023 with direction to decide the recall application within time bound period. In pursuance of the said order, recall application was heard and rejected vide order dated 17.11.2023. Recall/review application has been filed against the fixation of interim rent and as such its rejection confirms the fixation of interim rent.
4. He next submitted that there is provision of appeal under Section 35 of Act, 2021 against the orders passed by the Rent Authority. Section 35 of Act, 2021 provides pre deposits of 50% of the payable amount and in the present case, 50% of the payable amount would be 50% of the interim rent fixed by the order dated 16.9.2022. Against the review/recall order, rent appeal no.56 of 2023 has been filed without deposit of aforesaid amount, which is against the provisions of Act, 2021. The said appeal was entertained, original record of Appellate Authority has been summoned by the Rent Tribunal. He firmly submitted that no appeal has been filed against the order of fixation of interim rent dated 16.9.2022 rather than it has been filed against the recall/review order dated 17.11.2023. He lastly submitted that order of fixation of interim rent dated 16.9.2022 has never been challenged.
5. Learned counsel for the petitioner further submitted that after summoning the original record, petitioner is not in a position to initiate execution application to execute the order of interim rent dated 16.9.2022. He next submitted that as provided in Section 33 (2) & 35(2) of Act, 2021, direction may be issued to Rent Tribunal to decide the appeal at the earliest clarifying that pendency of such appeal may not be a ground for staying of any execution proceedings, if filed. He further submitted that direction may also be issued to rent tribunal not to summon the original record and in case original record is required, only photocopy/scanned copy duly certified by the Rent Authority may be sent. In support of his contention, he has placed reliance upon the judgment of Apex Court in the case of Asian Resurfacing of Road Agency P. Ltd. and Ors. Vs. Central Bureau of Investigation passed in Criminal Appeal Nos. 1375-1376 of 2013 decided on 25.4.2018. He lastly submitted that while challenging any order of interim maintenance or final eviction, direction may also be issued to Rent Tribunal to ensure the compliance of statutory provision of pre deposit of 50% of the payable amount as provided in Section 35 of 2021, Act.
6. Sri I.P. Srivastava, learned Additional Chief Standing Counsel for the State has not opposed and disputed the submission so made by the learned counsel for the petitioner. He also submitted that in the larger interest of justice, suitable direction may be issued to Rent Tribunal/Rent Authority to ensure the compliance of provision Act & Rules, 2021 in its spirit.
7. I have considered the rival submissions advanced by the learned counsel for the petitioner as well as Sri I.P. Srivastava, learned Additional Chief Standing Counsel for the State and perused the record as well as judgment relied upon. The first issue is before this Court about the time in which appeal is to be decided, therefore, Section 33(2) & 35(2) of Act, 2021 are relevant, which are being quoted hereinbelow:-
"Section 33(2) The Rent Authority or Rent Tribunal, as the case may be, shall endeavour to dispose the case as expeditiously as possible, not exceeding a period of more than sixty days from the date of receipt of the application or appeal.
Provided that where any such application or appeal, as the case may be could not be disposed of withing the said period of sixty days, the Rent Authority or Rent Tribunal, as the case may be, shall record its reason in writing for not disposing of the application or appeal within that period.
Section 35(2) Upon filing an appeal under sub-section (1), the Rent Tribunal shall serve notice, along with a copy of memorandum of appeal to the respondent and fix a hearing not later than thirty days from the date of service of notice of appeal on the respondent and the appeal shall be disposed of within a period of sixty days from such date of service."
8. From perusal of the aforesaid sections, it is apparently clear that in all eventuality applications/appeals have to be decided maximum within a period of 60 days from the date of filing. In case it is not decided within the same time, reasons has to be recorded in writing.
9. Second issue is about the summoning of original record from the Rent Authority. Similar issue was before the Apex Court in the matter of Asian Resurfacing (Supra) in which Apex Court has issued direction to trial Court to send the photocopy/scanned copy of the record after retaining the same. The said judgment is quoted hereinbelow:-
"1. Heard learned counsel for the parties.
2. In view of judgment of three Judge Bench dated 28th March, 2018 and after considering the material on record. we do not find any ground to interfere with the order framing charge.
3. Accordingly, the trial Court is directed to proceed with the matter pending before it. All contentions of the parties are left open which may be gone into by the trial Court. Parties are directed to appear before the trial Court on 14th May, 2018.
4. To give effect to directions in judgement of this Court dated 28th March, 2018, noted above, we direct that wherever original record has been summoned by an appellate/revisional Court, photocopy/scanned copy of the same may be kept for its reference and original returned to the trial Courts forthwith.
5. We also direct that if in future the trial Court record is summoned, the trial Courts may send photocopy/scanned copy of the record and retain the original so that the proceedings are not held up. In cases where specifically original record is required by holding that photocopy will not serve the purpose, the appellate/revisional court may call for the record only for perusal and the same be returned while keeping a photocopy/scanned copy of the same.
6. A copy of this order be sent to all the High Courts."
10. From perusal of the aforesaid order, Apex Court has issued specific direction to trial Court to send the photocopy/scanned copy of the original record retaining the same so that the proceedings are not held up. Ratio of law laid down by the Apex Court in the matter of Asian Resurfacing (Supra) shall also be applicable in the present case. This Court cannot take different view, therefore, it is always on the part of Rent Authority to send photocopy/scanned copy after retaining the original records to Rent Tribunal, if summoned. A letter of certification may also be annexed alongwith photocopy/scanned copy of the record.
11. The third issued was before this Court for direction to deposit of 50% amount in terms of Section 35 of Act, 2021. Same is quoted hereinbelow:-
"35. Appeal to Rent Tribunal (1) Any person aggrieved by an order passed by the Rent Authority may prefer an appeal along with a certified copy of such order to the Rent Tribunal within the local limits of which the premises is situated, within a period of thirty days from the date of that order:
Provided that no appeal shall lie unless the appellant pre-deposits fifty percent of the entire payable amount under the impugned order of the Rent Authority.
(2) Upon filing an appeal under sub-section (1), the Rent Tribunal shall serve notice, along with a copy of memorandum of appeal to the respondent and fix a hearing not later than thirty days from the date of service of notice of appeal on the respondent and the appeal shall be disposed of within a period of sixty days from such date of service.
(3) Where the Rent Tribunal considers it necessary in the interest of arriving at a just and proper decision, it may allow filing of documents at any stage of the proceedings in appeal:
Provided that no such document shall be allowed more than once during the hearing.
(4) The Rent Tribunal may, in its discretion, pass such interlocutory order during the pendency of the appeal, as it may deem fit.
(5) While deciding the appeal, the Rent Tribunal may, after recording reasons therefor, confirm, set aside or modify the order passed by a Rent Authority."
12. From perusal of the same it is apparently, clear that there is no exception to skip away from pre deposit of 50% the entire payable amount under the impugned order of the rent authority at the time of filing of appeal. In case any order is under challenged having direction of payment of any amount, no appeal can be entertained against the said order without pre deposit of 50% amount as mandated in Section 35 of Act, 2021.
13. Filing of appeal against the review/recall order without pre deposit of 50% amount and thereafter summoning of original record by the Rent Tribunal withholding the execution proceedings is nothing, but misuse of process of law.
14. Therefore, under such facts and circumstances as well as law laid down by the Apex Court, the petition is disposed of with the following directions:-
(i) Rent Tribunal/Rent Authority is directed to decide the appeals/applications as the case may be, strictly within the time limit provided in Section 33(2) & 35(2) of Act, 2021 i.e. 60 days. In case same is not decided within the prescribed time, they shall record reasons in writing for the same.
(a) In light of aforesaid observations, present Rent Appeal No. 56 of 2023 shall also be decided in terms of Section 33(2) & 35(2) of Act, 2021.
(ii) In case of summoning record by the Rent Tribunal, Rent Authority shall send the photocopy/scanned copy of the same alongwith letter of certification retaining the original record for further proceedings in accordance with provisions of Act & Rules, 2021. Rent Tribunal is also directed to ensure the compliance of above noted direction and in case original record is send by the Rent Authority, Rent Tribunal, after retaining the photocopy/scanned copy of the same, shall send back the original record to Rent Authority maximum within a period of two weeks from the date of receiving the same.
(iii) Rent Tribunal is further directed not to entertain any appeal in contrary to provision of Section 35 of Act, 2021 without pre deposit of 50% of the amount payable under the order of Rent Authority. In case original order is not under challenged, only order of review/recall as discussed herein above is under challenge without deposit of 50% amount, original order shall not be treated under challenge and any interim order granted in appeal against review/recall order shall not be treated stay of original order. It would also be open for the applicant to initiate execution proceedings, if advised.
15. Registrar General is directed to circulate the copy of this order to all Rent Authority and Rent Tribunal of State of Uttar Pradesh for necessary compliance at the earliest.
Order Date :- 22.5.2024
Junaid
