JUDGMENT Rakesh Sharma, J.
1. Heard Sri J.N. Pandey, learned Counsel for the petitioner. Sri Saurabh Lawanla has put in appearance on behalf of Smt. Hafsa Mahmood, opposite party No. 3.
2. The petitioner has assailed the judgment and order dated 20.4.2004 passed by the Prescribed Authority/Civil Judge, Mohanlalganj (Senior Division), Lucknow as also the judgment and order dated 15.9.2005 passed by the District Judge, Lucknow. The learned courts below have recorded concurrent findings of facts and the application of the landlady for release of House No. 116/153, Ghasiari Mandi, Kaiserbagh, Lucknow, hereinafter referred to as the premises, has been allowed. The order passed by the prescribed authority for release of the premises has been upheld by the learned appellate court, District Judge, Lucknow.
3. It emerges from record that Smt. Hafsa Mahmood, opposite party No. 3 moved an application for release of the premises under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. XIII of 1972), hereinafter referred to as the Act. In this application, it was alleged that the petitioner is a tenant of the premises on a monthly rent of Rs. 25. He was inducted in the premises by late Shafaqat Ullah Kirmani. During his life time. A registered Will was executed by Sri Shafaqat Ullah Kirmani on 25.12.1995 in respect of the premises in favour of Smt. Hafsa Mahmood. After the death of Sri Shafaqat Ullah Kirmani, Smt. Hafsa Mahmood became absolute owner of the premises by virtue of the said Will. The record further reveals that a 'letter of administration' in respect of the premises was also obtained from the Court of the District Judge, Lucknow. The formal 'letter of administration' was issued on 27.11.2003. The legal heirs of the executant of the said Will raised no objection in respect of the said letter of administration. They had also informed the tenant, petitioner in respect of the aforesaid Will and he was advised to pay the rent to the present landlady. It was demonstrated before the prescribed authority in the release application that the husband of the applicant landlady is an officer in the Indian Railways. He was posted at New Delhi at the relevant time. He was holding a transferable post and could be posted anywhere in India. The landlady is having two children Adeel Mahmood and Km. Amina Mahmood. They were aged about 19 years and 18 years respectively when the release application was filed on 5.2.2004.
4. In the release application, the landlady had indicated that the family of the tenant Sri Javed Jameel consisted of his wife Nahid Javeed, one son and two daughters. Smt. Nahid Javeed, wife of the tenant is an employee of U.P. Power Corporation Limited and was earning a sum of Rs. 19,080 per month. She was getting a sum of Rs. 1,470 as House Rent Allowance (H.R.A.), whereas the tenant was paying a monthly rent of Rs. 25 only to the landlady. The landlady had submitted before the prescribed authority that she was in bona fide and genuine need of the premises as she wanted to permanently 'settle" at Lucknow. Her children needed proper education at Lucknow where institutions of higher learning are available in abundance. Because of frequent transfers of her husband in Railway service, the education of the children of the landlady was disturbed. The landlady had laid stress in her release application that there was no other accommodation available to her at Lucknow except the premises in question. It was averred that the wife of the tenant, Smt. Nahid Javeed owns a share in the ancestral house consisting of four rooms alongwith kitchen, latrine, bath-room etc., i.e., house No. 175/105, Peer Jalil, Golaganj, Lucknow, just at a distance of one kilometre from the premises in question. The portion in the share of the wife of the tenant was lying vacant, where he could have comfortably shifted, A notice of demand was also served. The landlady had highlighted her need as bona fide, hard-pressing and genuine in comparison to the need of the tenant.
5. The learned prescribed authority/Civil Judge (Senior Division), Mohanlalganj, Lucknow, allowed the application for release and passed a specific order on 20.4.2005 for vacation of the premises. The learned prescribed authority also observed that a copy of the order passed by it be sent to the U.P. Power Corporation, employer of Smt. Nahid Javeed, wife of the tenant, who was receiving Rs. 1,470 as H.R.A. while living in the premises in question for meagre rent of Rs. 25 per month only.
6. Against the aforesaid judgment and order of the prescribed authority, the petitioner preferred an appeal, which has also been dismissed by the learned District Judge, Lucknow, by writing a 18-page long judgment and order dated 15.9.2005.
7. Sri J.N. Pandey, learned Counsel for the petitioner has assailed both the abovenoted judgments and orders of the learned courts below on several grounds in this writ petition. At the out-set, he has submitted (that the prescribed authority has unnecessarily sent a copy of its judgment and order dated 20.4.2005 to the employer of petitioner's wife, i.e., U.P. Power Corporation Ltd. The prescribed authority has allowed only one week's time to vacate the premises, which is against the spirit of Sub-section (6) of Section 21 of the Act. The prescribed authority has acted in excess of its jurisdiction not vested in the said Court. The petitioner's learned Counsel has vehemently urged that the house in dispute is a was property and it is not covered by the Act. The petitioner had never recognized Smt. Hafsa Mahmood as landlady of the premises, nor he could be forced to pay the rent to the alleged landlady. Neither the rent was demanded by Smt. Hafsa Mahmood, nor there was any question of making payment of rent to her.
8. Learned Counsel for the petitioner has raised another objection regarding title of the landlady, submitting that this premises is an enemy property. The rent can be collected only by the custodian of evacuee property. According to him, the title of the property is itself in dispute. The premises does not belong to Smt. Hafsa Mahmood. It can be defined as a waqf property or enemy property. He has also challenged the Will executed by Sri Shafaqat Ullah Kirmani.
9. Sri J.N. Pandey, learned Counsel for the petitioner has further submitted that the letter of administration was not required in this case. There was no probate order in favour of the alleged landlady. The Will said to be executed on 25.12.1995 by Sri Shafaqat Ullah Kirmani was not proved before the Court. So far as comparative hardship is concerned, the petitioner, tenant was to face great hardship in moving from the premises. The landlady is already having property at Aligarh and she can settle herself in that city. Her mother is having a big house where she can settle her family. As per learned Counsel for the petitioner, the bona fide need of the landlady has not been established and the judgments of the learned courts below are perverse, against the record and the evidence.
10. Sri Saurabh Lawania, learned Counsel for the landlady Smt. Hafsa Mahmood, opposite party No. 3 has resisted the writ petition. He has submitted that a Will was executed in favour of Smt. Hafsa Mahmood by her maternal uncle Sri Shafaqat Ullah Kirmani in respect of the premises on 25.12.1995 and on the basis of said valid, legal deed she became the owner of the premises. After execution of the Will, the premises was mutated in the name of Smt. Hafsa Mahmood. In the "Tax Assessment Record' of Lucknow Nagar Nigam, the name of Smt. Hafsa Mahmood has been recorded as owner of the property. Her name was mutated in place of Sri Shafaqat Ullah Kirmani. Smt. Hafsa Mahmood has laid much stress on her obtaining a 'letter of administration' from the court of District Judge, Lucknow. The District Judge, Lucknow, had passed the said order in Misc. Case No. 289 of 2003 on 27.11.2003. This order of the District Judge has not been challenged by any of the concerned parties. No one had raised any objection before the District Judge, Lucknow, in the said Misc. Case No. 289 of 2003. The petitioner had admittedly sent rent of the premises to Sri Amir Kirmani, son of Sri Shafaqat Ullah Kirmani. Sri Amir Kirmani had filed an affidavit before the court below indicating therein that Smt. Hafsa Mahmood is his maternal sister and she is the owner, landlady of the premises. He had also indicated in the said affidavit, duly noticed by the learned courts below, that his father Sri Shafaqat Ullah Kirmani, during his life-time, had executed a Will in respect of the premises in favour of the present landlady on 25.12.1995. The affidavit of Sri Amir Kirmani has been given weightage by the prescribed authority and the appellate authority. Since the facts were established before the courts below, there was no necessity of cross-examination of the witness. It was established before both the courts below that Smt. Hafsa Mahmood was the landlady and the premises was not a waqf property or enemy property as alleged by the tenant.
11. Sri Saurabh Lawania has drawn the attention of the Court that two Writ Petitions bearing Nos. 9 (R/C) of 2005 and 50 (R/C) of 2005 were filed by the petitioner tenant in this Court challenging some interim orders passed by the prescribed authority with the purpose of delaying the disposal of the proceedings. Both the petitions were dismissed. According to the learned Counsel, the petitioner has deliberately concealed this fact from the Court that he had preferred the said two writ petitions ; he has not come with clean hands. This Court has already made observations against the petitioner Indicating in the judgment dated 19.4.2005, passed in Writ Petition No. 50 (R/C) of 2005 that through an amendment in the pleadings, the tenant was trying to raise pleas, which, if allowed, would have converted the S.C.C. Suit into a title suit ousting thereby the jurisdiction of the prescribed authority under the Act. The Court has further observed that it would also be pertinent to point out that for entitlement to make an application for release under Section 21, a person need not be the owner of the property. The only requirement is that he should be a landlord within the meaning of Clause (j) of Section 3 of the Act. According to Sri Lawania, the petitioner, who was allegedly paying rent to Sri Amir Kirmani, could not be permitted to take a somersault before the Court that the property was a writ property or enemy property or the title of the landlady was disputed. The prescribed authority has rightly passed the order under Sub-section (6) of Section 21 of the Act. The learned District Judge has passed a detailed, reasoned and speaking order while dealing with the matter. The findings recorded by the courts below are concurrent findings of facts. The writ petition itself is not maintainable under Article 226 of the Constitution of India. Sri Lawania has placed reliance on the following judgments in support of his submission that even if an order passed by an authority is without jurisdiction and the said order appears to be just and equitable, this Court will not interfere with such orders. The findings of facts cannot be interfered with under Article 226 of the Constitution of India.
(1) Abdul Nairn Quraishi v. Masiuddin Khan 2005 (UP) RCC 220;
(2) Ram Autar Agrawal v. Additional District Judge (Special) Rampur and Ors. 2005 (UP) RCC 192;
(3) Shree Kishan v. Additional District and Sessions Judge. Kanpur and Ors. 2005 (UP) RCC 364;
(4) Alimuddin v. XIIth Additional District and Sessions Judge, Meerut and Ors. 2005 (UP) RCC 388; and (5) Bata India Ltd., Calcutta v. 3rd Additional District Judge, Muzajfarnagar and Ors. 2001 (19) LCD 330.
12. Sri Saurabh Lawania has further placed reliance on a judgment in Ratan Kumar and Ors. v. A.D.J. IIIrd, Allahabad and Ors. 2002 (UP) ARC 257, in support of his submission that if natural legal heir did not claim any right but supported the Will, the strangers have no locus standi to challenge the title.
13. I have heard the learned Counsel for the parties and carefully gone through the material on record including the judgments and orders of the courts below passed on 22.4.2005 and 15.9.2005.
14. Here is a case where a tenant has been residing in the premises in question for the last 55 years, paying a meagre rent of Rs. 25 or 40 per month for a three-room set with other amenities of kitchen, latrine, bathroom etc. in the central area of the city of Lucknow. This is also a case where the wife (not separated from her husband, the tenant) is receiving House Rent Allowance of Rs. 1,450 from her employer, the U.P. Power Corporation Limited for hiring a house in the city of Lucknow to enable her to discharge her duties, functions and responsibilities of the post held by her under the said employer. The petitioner Javed Jameel and his wife Smt. Nahid Javed are members of the same family as defined under Section 3 of the Act.
15. The record reveals that one Shafaqat Ullah Kirmani was the landlord, owner of the premises. He had executed a valid, legal Will on 25.12.1995 in favour of Smt. Hafsa Mahmood, his own sister's daughter, during his life time. He died on 4.7.1997. After his death, Smt. Hafsa Mahmood became the owner landlady of the above-mentioned premises by virtue of the said Will. As Smt. Hafsa Mahmood became the owner, landlady of the premises, the petitioner automatically became her tenant. It has been admitted by the petitioner that he had paid Rs. 40 per month as rent to Sri Amir Kirmani, son of late Shafaqat Ullah Kirmani, cousin of Smt. Hafsa Mahmood, opposite party No. 3. Sri Amir Kirmani filed an affidavit (Paper No. 16C) before the prescribed authority that Smt. Hafsa Mahmood is the landlady, owner of the premises. He has affirmed the fact that his father', during his life time, had executed a Will in respect of the premises in question in favour of the present landlady on 25.12.1995. He has further asserted that a 'letter of administration' was also obtained on 27.11.2003 from the District Judge, Lucknow. These facts were found to be established before both the courts below. In the present case, after execution of the Will, the premises has been mutated in the name of Smt. Hafsa Mahmood in the records of Lucknow Nagar Nigam. In the House Tax Assessment record, her name was recorded as landlady of the premises. The prescribed authority has taken into account several documents which were produced before it. On the basis of documentary evidence, both the learned courts below have concluded that Smt. Hafsa Mahmood is the owner, landlady of the premises and the petitioner was merely a tenant. The petitioner has failed to establish before the courts below and even before this Court that the premises in dispute was a waqf property or enemy property. The submission made in this regard has not been substantiated by any material on record. It appears to be a 'plea of convenience' only.
16. It is interesting to note that in the municipal records, house assessment records, the name of Smt. Hafsa Mahmood has been shown as owner and not of custodian of waqf or evacuee property. The letter of administration issued by the District Judge, Lucknow, itself clarifies that the property was owned by Smt. Hafsa Mahmood. Both the courts below have taken into account the facts regarding bona fide and genuine need of the landlady. Her husband was working in Indian Railways. His services were transferable. She was having two children and wanted to settle herself and family at Lucknow. It has been established before both the courts below that she did not have any other house or property in the city of Lucknow. They have also appreciated the fact that the premises in question was required by the landlady to provide proper education to her children in Lucknow. In arriving at its conclusion as aforesaid, the learned appellate court has placed reliance on a judgment, in Deepak Njihawan v. VIth Additional District and Sessions Judge 2002 (2) LCD 1170 and other case laws.
17. The prescribed authority has given a detailed finding of fact based on documentary evidence that the tenant's wife Smt. Nahid Javed is working in the U.P. Power Corporation Limited and is receiving Rs. 1,450 as H.R.A. per month while a meagre amount of Rs. 40 is being paid as monthly rent for the premises. This is a case of misconduct, for which the prescribed authority has rightly sent a copy of its Judgment and order to the U.P. Power Corporation Limited. When an illegal act comes to the notice of the Court, it cannot shut its eyes and the same must be brought to the notice of the employer and this has been done in the present case.
18. Both the courts below have appreciated the fact that the wife of petitioner tenant is having a share in House No. 175/105, Peer Jalil. Golaganj, Lucknow. They have recorded concurrent findings of facts allowing the release of the premises. The judgment and order passed by the appellate authority, i.e., District Judge, Lucknow, is a reasoned and well-considered decision running in eighteen pages. This Court appreciates the endeavour of District Judge, Lucknow, who has dealt with each and every point raised before him in detail appreciating the facts and the law on the subject. The appellate authority has rightly held on the basis of documentary evidence that Smt. Hafsa Mahmood has no other alternative accommodation in the city of Lucknow except the premises in question. The services of her husband, an officer of Indian Railways being transferable, he could be transferred and posted at any place in the country. She, therefore, required the premises to permanently settle her family at Lucknow and to educate her school or college-going children. The District Judge has rightly observed that the financial income of the tenant alongwith substantial income of his wife is sufficient to hire an accommodation in the developing city of Lucknow where new residential colonies, multi-storeyed buildings have come up in abundance, The learned court has also appreciated the fact that the petitioner has not made any genuine effort to find out an alternative accommodation in the city of Lucknow. In view of the Supreme Court authority in B.C. Bhutada v. G.R. Mundada , this by itself was sufficient to tilt the balance of comparative hardship against the tenant. Thus, the questions of comparative hardships, bona fide need etc. have properly been dealt with by the learned courts below by recording detailed findings, which need no interference. The law£ is well-settled that this Court in exercise of powers under Article 226, of the Constitution of India cannot be requested to sit in appeal over the findings arrived at by the two authorities or courts below, vide judgments of this Court, in Abdul Nairn Quraishi v. Masiuddin Khan 2005 (UP) RCC 220; Ram Autar Agrawal v. Additional District Judge (Special) Rampur and Ors. 2005 (UP) RCC 192; Shree Kishan v. Additional District and Sessions Judge, Kanpur and Ors. 2005 (UP) RCC 364; Alimuddin v. XIIth Additional District and Sessions Judge, Meerut and Ors. 2005 (UP) RCC 388 and Bata India Ltd. Calcutta v. IIIrd Additional District Judge, Muzaffarnagar and Ors. 2001 (19) LCD 330.
19. The prescribed authority acting under Section 21 of the Act or the appellate authority is not competent to decide the question of title, as has been raised by the petitioner-tenant. In the judgments of this Court as in D.S. Victor v. District Judge, Bareilly and Ors. 1978 ARC 413 and Ratan Kumar and Ors. v. IIIrd A.D.J., Allahabad and Ors. 2002 (UP) ARC 257, this issue has been dealt with in detail and I find no illegality or infirmity therein so as to call for any interference. The judgments and orders passed by the learned courts below are in consonance with the law laid down by this Court.
20. In view of above, the writ petition fails and the same is dismissed with costs. The petitioner Javed Jameel is directed to vacate the premises and hand over peaceful possession of the same to Smt. Hafsa Mahmood, opposite party No. 3 within one month from today.
21. This judgment and order is being delivered in the presence of the learned Counsel for the parties. The petitioner shall ensure compliance of the Court's order within the stipulated period.