Heard learned counsel for the parties and perused the record.
This writ petition has been filed challenging the validity and correctness of the orders dated 31.1.2011 and 10.2.2011 passed by Special C.J.M. Kanpur Nagar/Prescribed Authority in Rent Case No. 27 of 2001: Mithelesh Kumari Vs. Mohd. Yunus.
The brief facts of the case are that release application was filed by the landlord/respondent no. 2 under Section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) for release of accommodation in dispute in possession of the tenant Mohd. Yunus from the premises House No. 11/89 Suitergunj, Kanpur Nagar. The tenant filed an objection inter alia that need and hardship of the respondent/landlord is not genuine and bonafide. Though admitting the fact in para 1 of his objection that respondent no. 2 was his landlady and he was her tenant, also raised question of ownership whereupon Mohd. Yunus, the original tenant died on 4.1.2010. The petitioner, Ms. Hazra Begum the real unmarried sister of Mohd. Yunus and his real brother Mohd. Ayub represented themselves as tenant on the ground of being family members of the original tenant Mohd. Yunus (since deceased). Apart from the objection already filed by the original tenant Mohd. Yunus to the release application, the petitioner also filed her objections adopting the stand taken by her late brother that waqf Moitadaula is the owner of the premises in question and neither the waqf Moitadaula nor Shia Central Board of Waqf is arrayed as a party in the release application. The petitioner also moved an application under Section 34 (c) of the Act for appointment of advocate commissioner and for actual measurement of the accommodation in dispute. The application for commission along with prayer has been filed as Annexure-5 to the writ petition, which reads thus:
"In the instant matter, it is submitted that the landlady is in use and occupation of two rooms on the ground floor, two rooms on the first floor and one big room (by removing partition wall in between two rooms) on the second floor while she has mentioned only two rooms in her occupation in the premises in question. So inspection of the premises in question has become essential to assess and enquire into the alleged need and requirements of the landlady/petitioner. Hence this application for appointment of an Advocate commissioner in the case to inspect the premises in question and to submit his report proper prayer as under:-
It is, therefore, respectfully prayed to please appoint an Advocate Commissioner to inspect the premises in the case and submit his report on the following points:-
(i) To the measurement of the accommodation on ground floor, first floor and second floor under occupation of the landlady in premises no. 11/89 Souterganj, Kanpur Nagar.
(ii) To take separate measurement of rented portion of the opposite party no. 1/2 Hazra Begum.
(iii) To note the names of tenants, if any, presently occupying the portion and to enquire about the time whence he or she is occupying.
(iv) To note any other point, pointed out by the parties on spot or by their respective counsel."
Subsequently, the Court of Special C.J.M./Prescribed Authority vide order dated 18.1.2011 allowed the application granting a day's time for taking steps. It appears that on 31.1.2011, opportunity to take steps was closed as the petitioner had not taken any steps in pursuance of the order dated 18.1.2011 passed by the Prescribed Authority and fixed 10.2.2011 in the case. On that date i.e. 10.2.2011, the petitioner moved an application for grant of further time to take steps which has been refused by the Court by the following order dated 10.2.2011.
The order dated 10.2.2011 is thus:
^^10-2-11 i=koyh is'k gsqbZA mHk;i{k ds fo}ku vf/koDrk mifLFkrA i=koyh cgl gsrq fu;r gSA foi{kh dh vksj ls izkFkZuk i= dkxt la0 105 ij cy nsrs gq, dgk fd vkns'k fn0 31-1-11 dks fujLr djrs gq, deh'ku dh dk;Zokgh vxzlkfjr fd;s tkus dk vkns'k ikfjr fd;k tk; vkSj ;g dgk x;k fd fnukad 18-1-11 dks deh'ku dk;Zokgh gsrq izkFkZuk i= Lohdkj fd;k x;k Fkk fdUrq foi{kh vf/koDrk ds O;Lr gksus ds dkj.k vkns'k dh tkudkjh foi{kh dks ugha nh x;h ftl dkj.k deh'ku dk;Zokgh ugha gks ldhA foi{kh iSjoh djus dks rS;kj gSA i=koyh ds voyksdu ls Li"V gS fd U;k;ky; }kjk fnukad 18-1-11 dks foi{kh dk deh'ku dk;Zokgh gsrq izkFkZuk i= l'krZ Lohdkj fd;k x;k Fkk vkSj foi{kh dks vknsf'kr fd;k x;k Fkk fd ,d fnu ds vUnj iSjoh djsA iSjoh u djus dh fLFkfr esa deh'ku dk;Zokgh dk vkns'k Lor% fujLr le>k tk;sxkA foi{kh dh vksj ls dksbZ iSjoh ugha dh x;h vkSj fnukad 31-1-11 dks Hkh foi{kh }kjk dksbZ iSjoh ugha dh x;hA blls ;g Li"V gS fd foi{kh okn dh dk;Zokgh dks foyfEcr djuk pkgrk gS vkSj deh'ku izkFkZuki= okn dh dk;Zokgh dks yfEcr j[kus ds fy, fn;k x;kA orZeku okn bl U;k;ky; esa yfEcr ikap izkphure oknksa esa ls ,d okn gS ftlds 'kh?kzkfr'kh?kz fuLrkj.k ds vkns'k ekuuh; mPp U;k;ky; }kjk fn;s x;s gSA ,slh fLFkfr esa foi{kh la0 [email protected] dh vksj ls izLrqr izkFkZuk&i= esa tks vk/kkj izLrqr fd;s x;s gSa os lkjxfHkZr izrhr ugha gksrs gSaA rnuqlkj foi{kh dh vksj ls izLrqr izkFkZuk i= dkxt la0 105 [kkfjt fd;k tkrk gSA i=koyh okLrs cgl fnukad 18-2-11 dks is'k gksA Lis'ky lh0ts0,e0 @ fu;r izkf/kdkjh dkuiqj uxjA** In the order dated 10.2.2011 it is provided that in case steps are not taken by the applicant within the time allowed the order for appointing the commissioner shall be understood to be automatically discharged/vacated. The Court thereafter fixed 31.1.2011 in the case.
Aggrieved by the said order, the petitioner has filed this petition.
The contention of learned counsel for the petitioner is that Section 34 (c) of U.P. Act No. 13 of 1972 provides for appointment of commission for inspecting a building for concluding the actual position of landlord and tenant and bonafide need and comparative hardship between them. Hence refusal to grant further time for taking steps after allowing the application is illegal and not tenable in law. In support of these arguments, he has relied upon the following judgments:-
(i) 2003 (1) ARC 418: Dwarika Nath Soni Vs. Bhagwan Das Gupta.
(ii) 2001-ALLLR-44-242: Mohan Lal Shukla Vs. Nazima Begum and another.
(iii) 2008 (3) ARC 171: Harish Chandra Jauhari Vs. Sunil Bajpai and another.
In the case of Dwarika Nath Soni Vs. Bhagwan Das Gupta (supra), the Court was considering the question involved in the application for local inspection of shops alleged to have been constructed by the landlord in the residential accommodation.
Paragraphs 5 and 6 of that judgment relied upon by the counsel for the petitioner reads thus:
5. Learned Counsel for the respondents has relied upon a decision of this Court in the case of Dr. K.C. Tandon v. IX A.D.J. reported in 1998 (1) ARC 589, for the preposition that local inspection by the commission is not a right of any party and is in the discretion of the Court.
6. Considering the facts stated above, I am of the opinion that there discretion should have been exercised for issuing a commission on this vital aspect involved in the case in order to ascertain the exact position on the spot instead trying to infer it by means of complicated legal logic applied to the evidence on record and therefore, the impugned order denying local inspection by the commission deserves to be set aside."
In the peculiar facts and circumstances of that case, the Court took a view that discretion by the Court should have been exercised for issuing commission on this aspect of change of user of the building from residential to commercial involved in the case in order to ascertain the exact position on the spot instead of trying to infer in it by means of complicated legal logic applied to the evidence on record.
In the decision rendered by the Court in Mohan Lal Shukla v. Nazima Begum & another (supra) it has been held that the application for appointment of commissioner was moved by the petitioner on the allegation that Saw Mill was run by the son of the opposite parties. The application remained pending before the Prescribed Authority but no order could be passed. When an application was preferred before the appellate authority it was refused on the ground that there was sufficient material on record for deciding the controversy.
In the aforesaid circumstances, the High Court in paragraph 5 of the said judgment opined that principle of natural justice will suffice if a commission is issued and keeping in mind that the Prescribed Authority took more than 10 years to pronounce his order and thereafter the appeal was filed time barred in the year 2000 and an application for issuance of commission was moved on 18.4.2001, without making observation against either side, the fact remains that sufficient delay has been caused before the Prescribed Authority itself and the matter thereafter is still pending before the appellate Court. The Court expressed its opinion that there is a need for issuance of commission to verify the fact whether son of the opposite parties is running a Saw Mill or not?
The third case relied upon by learned counsel for the petitioner i.e. Harish Chandra Jauhari v. Sunil Bajpai and another (supra), pertains to an application filed by landlord under Sections 21 (1) (a) and Section 34 of U.P. Act No. 13 of 1972. The tenant contested the application and also filed another application for appointment of an Advocate Commissioner for inspection of the premises of landlord. It was rejected by the Prescribed Authority. In the writ petition filed, the Court was of the opinion that there is a serious dispute between the parties as to extents of accommodation available with the landlord. Hence, necessity to appoint an Advocate Commissioner was felt and direction in this regard was issued to obtain Commissioner's report within three weeks. The case was also expedited by the Court below.
Relevant paragraphs 6, 7 and 8 of the judgment are as under:
"6. There is, therefore, a serious dispute between the parties as to the extent of accommodation available with the landlord. In such circumstances, it was necessary that an Advocate Commissioner should have been appointed to submit a report of the accommodation available with the landlord after the inspection. The application filed by the tenant should, therefore, have been allowed.
7. Learned Counsel for the landlord, however, submitted that the desire of the tenant is only to delay the disposal off the application filed under Section 21 (1) (a) of the Act and, therefore, a time bound direction may be given.
8. The writ petition is accordingly allowed. The order dated 27th February, 2008 passed by the Prescribed Authority is set aside. The application filed by the tenant under Section 34 of the Act is allowed. However, the Prescribed Authority shall ensure that the report is submitted by the Advocate Commissioner within a period of three weeks from the date a certified copy of this order is filed by either of the parties before it. The Prescribed Authority shall also make an endeavour to decide the application filed by the landlord under Section 21 (1) (a) of the Act, expeditiously preferably within a period of three months from the date of submission of the report by the Advocate Commissioner. No order as to costs."
It is then stated that petitioner and Mohd. Ayub being real brothers and sisters of the tenant Mohd. Yunus are his family members in this regard. The counsel for the petitioner has relied upon para 10 of the written statement which is as under:
"That the contents of para 10 wrongly typed as para 9 of the release petition are not admitted as stated. It is denied that there is no family member of the opp. party except the opp. party and his sister, therefore, the opp. party is residing himself. Moreover his sister Smt. Hazra Begam is also residing with the opp. party because Hazra Begam is unmarried sister of the opp. party, therefore she is also the family member of the opp. party. It is denied that the opp. party has kept his younger brother Mohd. Ayub. As a matter of fact he is residing as independent tenant on the ground floor of the disputed premises along with his son, wife etc. Therefore, it is denied that younger brother Mohd. Ayub is residing along with his family in the disputed accommodation along with his family members in the disputed accommodation under the possession of tenant opp. party. These allegations have been raised just to make a false case against the opp. party. Since Mohd. Ayub is independent tenant of the portion on the ground floor of the said premises. Therefore, it is denied that the opp. party has kep Mohd. Ayub as sub-tenant in his own portion. The allegations have been concocted just to give colour to the false story."
From perusal of paragraph 1 of written statement/objection filed by Ms. Hazra Begum, it is apparent that late Mohd. Yunus was unmarried and died issue less. He in his written statement in paragraph 10 has not stated that he had married or he had any wife, son or daughter. Rather in the said paragraph he has denied that younger brother Mohd. Ayub is residing with him along his family and has stated that he is living as a tenant in his own right, which is the accommodation in possession of Mohd. Ayub, which is not specified. However, it is clear from perusal of aforesaid paragraph that the tenant admitted himself family of the land lady distinct and separate from the rights of her brother Ayub. Therefore, tenancy of Yunus could not have devolved upon him. Since Mohd. Ayub is said to be independent tenant he could not be living with Mohd. Yunus in the accommodation in dispute to inherit tenancy. As regards the petitioner Ms. Hazra Begum is concerned, she not being a male lineal descendants of the tenant Mohd. Yunus will not inherit tenancy as member of his family as defined in Section 3(g) of the Act.
Family has been defined under Section 3 (g) of U.P. Act No. 13 of 1972 thus:
"3 (g). "family" in relation to a landlord or tenant of a building, means, his or her--
(i) spouse,
(ii) male lineal descendants,
(iii) such parents grand-parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building;"
Thus, the petitioner, Hazra Begum, not being lineal descendants of Mohd. Yunus who died issue less, does not fall within the aforesaid definition clause i.e. 3 (g). As regards, his brother Mohd. Ayub is concerned, according to the objection filed by the tenant Mohd. Yunus (since deceased) himself his brother is an independent tenant. Therefore, neither tenancy would devolve upon the petitioner Ms. Hazra Begum nor upon Mohd. Yunus.
In view of the above provisions of law and the facts and circumstances, the moot question to be decided is as to whether application for appointment of commission was maintainable or not and secondly whether any prejudice has been caused to the petitioner by rejecting his application for allowing further time to him for taking steps and as to what would be the effect of appointment of commission in the peculiar facts and circumstances of the case.
From perusal of prayer made in the application for appointment of commission, it is apparent that there is only prayer for measurement and not the number of rooms in possession of respective parties on the accommodation in dispute.
The petitioner has also not filed subsequent proceedings after order dated 31.1.2011 closing opportunity to take steps by the Court. It appears from record that the case was already listed for cross-examination of the respondent when application for commission was moved.
Firstly the application for appointment of commission for measurement of the disputed premises would not help the petitioner as he disputes number of rooms in the accommodation in possession of landlord in her capacity of tenant but prima facie it appears that the claim of the petitioner and her brother Ayub is without basis and they do not inherit the tenancy and in any case the tenant Yunus had himself stated in para 10 of his written statement that Ayub was an independent tenant whereas the petitioner does not fall within the definition of family as defined in Act No. 13 of 1972. Therefore, without entering into the merits of the case, I am of the considered view that mere measurement of accommodation in question or rejection of the application of the petitioner for further time to take steps would not in any way prejudice the case of the petitioner. Moreover, for the averments made in paragraph 1 of the objection filed by Mohd. Yunus (since deceased) and the objection to the release application filed by the petitioner Ms. Hazra Begum and considering the provisions of section 3(g) of Act No. 13 of 1972, no prejudice would be caused to the petitioner and her brother Mohd. Ayub as the tenancy not devolved upon them.
As regards case cited by the petitioner in the case of Dwarika Nath Soni v. Bhagwan Das Gupta (supra) is concerned, suffice it to say that local inspection by the commission is not a right of any party and is in the discretion of the Court which has already been exercised by the Court below in favour of the petitioner, yet he had not taken steps and is delaying the proceedings. In the instant case evidence is yet to be adduced and the court had already allowed local inspection, as such, this case is not applicable in the present case.
The second case cited by the petitioner is also not helpful to the petitioner as in that case application for appointment of commissioner remained pending before the Prescribed Authority but no order could be passed and when an application was preferred before the appellate authority the same has been refused on the ground that there is sufficient material on record.
The last case cited by the petitioner in the case of Harish Chandra Jauhari v. Sunil Bajpai and another (supra) is also not applicable in the present facts and circumstances of the case as in the said case the tenant had not denied the relationship of the tenant and the landlord, whereas in the instant case it is clearly born from the record that Mohd. Yunus was tenant being issue less.
For all the reasons stated above, I am not inclined to interfere in this case at interlocutory stage of proceedings in court below for exercising extraordinary powers under Article 226 of the Constitution of India.
The writ petition is, therefore, dismissed.
The Court below is directed to decide the case within a period of two months from the date of production of a certified copy of this order. It is made clear that any observation made in the judgment for the purpose of narration of facts and consideration of arguments, would not come in the way of the Court below for applying its independent mind while deciding the case finally.
As neither the respondents nor the court below are aware of this order & judgment having decided the writ petition at the admission stage itself, a copy of this order be sent to the Court below by the Registrar General by fax or registered post by 18th March, 2011.
Dated: 15.03.2011 RCT/-