Hon'ble Alok Mathur,J.
1. This writ petition has been filed to challenge the notice dated 17.02.2018, which has been issued by the Sub-Divisional Magistrate exercising power for the receiver appointed by this Court in a separate litigation.
2. The challenge to the notice has been made mainly on the ground that Sub-Divisional Magistrate has no authority to demand the rent of a property rented by the trust and to make a recovery as land revenue. It is stated that dues, if any, cannot be treated to be land revenue because it is not Government dues. It is towards the rent arising out of the relationship between the petitioner and the trust as tenant and landlord. For such a relationship, the provisions of Land Revenue Act cannot be invoked. It is more-so when the Sub-Divisional Magistrate was not even appointed as receiver to pass such an order. The impugned order is wholly incompetent, thus, deserves to be set aside. It is also stated that the rent demanded by the Sub-Divisional Magistrate is contrary to the rent mutually agreed to by the trust with the tenant.
3. A reference of the civil suit preferred by the petitioner's mother has been given. It was preferred when the petitioner's mother apprehended vacation of the house in her possession. To establish the tenancy, the receipt of the rent was produced and accepted by the civil court. The injunction was granted thereupon in favour of the petitioner's mother. In view of above, not only the tenancy get established but even the agreed rent was also proved. The Sub-Divisional Magistrate is demanding higher rent going contrary to the agreed rent between the tenant and the landlord. It has been demanded at the rate on which the Government can take rented premises. In view of above, the determination of the rent has also been questioned though a specific prayer for it, has not been made.
4. Learned counsel orally submitted that interference in the rent calculated by the respondents may also be made with a direction to accept the rent on the agreed rate. The prayer is accordingly to set aside the order with appropriate direction for acceptance of rent. It is for the reason that the petitioner is tendering rent through cheques to the receiver appointed by this Court but have not been encashed. It is from the year 2014. Prior to the year 2014, rent was directly paid and accepted by the trust for a period of four years that is from the year 2010 till 2014. The relevance of the year 2010 has also been given. In the said year, the receiver was appointed by this Court and thereby the rent became payable through the receiver. The petitioner was not knowing initially about the appointment of the receiver thus payment was made to the trust but ultimately when petitioner could know about the appointment of the receiver, started tendering the rent to the receiver. In view of above, a direction has also been sought for acceptance of the rent tendered by the petitioner. The prayer is accordingly to allow the relief prayed in the writ petition.
5. The writ petition has been contested by learned Standing Counsel, who admits that the property belongs to a trust. A statement of fact has been made by the petitioner regarding the payment of rent to the trust up to the year 2014. Many other issues have been referred in reference to the trust but it has not been impleaded as party respondents. The writ petition thus suffers from non-joinder of necessary party. It deserves to be dismissed on the aforesaid grounds itself.
6. It is also stated that the receiver was appointed by this Court in the year 2010, who was none else but Sub-Divisional Magistrate but later on, in the year 2016, the Principal Secretary, Department of Religious Affairs, State of U.P. was appointed as receiver. He had delegated powers to the Sub-Divisional Magistrate vide his order dated 03.08.2016 and under the said authority, the impugned notice has been issued by him.
7. In view of above, the order under challenge is not without authority of law rather it is after the power given to him pursuant to the order dated 03.08.2016. The order aforesaid has not been challenged so as to question the authority of the Sub-Divisional Magistrate, in passing the impugned order.
8. It is further stated that the petitioner has questioned the determination of rent by maintaining a writ petition under Article 226 of the Constitution of India. The determination of rent needs a finding of fact and otherwise also writ petition involves disputed question of facts which cannot be adjudicated by this Court exercising jurisdiction under Article 226 of the Constitution of India. The civil suit is a proper remedy but without taking remedy aforesaid for determination of rent or even for challenge of the order passed by the Sub-Divisional Magistrate, this writ petition has been preferred. It is more-so when earlier petitioner's mother has maintained a suit and was accepted by the civil court. No reason has been assigned as to why the suit was not maintained this time to question the order passed by the Sub-Divisional Magistrate with a prayer for determination of the rent and for its acceptance. All the questions raised in this writ petition could have been taken up before the civil court, which would have been decided after the evidence of the parties. In the light of the aforesaid also, the writ petition deserves to be dismissed.
9. It is lastly stated that the demand of rent has been made in reference to the order passed by the Government and determination of rent is on justifiable rates. In any case, what should be rent needs a probe on facts and it can be undertaken by a civil court. The prayer is accordingly to dismiss the writ petition in reference to the objection taken by the respondents.
10. We have considered the rival submission of the parties and perused the record.
11. The undisputed facts of the case are that the property in dispute belongs to a trust. The relationship of tenant and landlord said to have created by the trust. The payment of rent was made to the trust till the year 2014 and even prior to it. It is also that mere appointment of the receiver is not going to change the nature of the property rather it would remain to be of the trust.
12. In the light of the aforesaid, it becomes clear that property in question belongs to a trust. The issue pertaining to rate of the rent and its receipt upto the year 2014 can be answered by the trust alone but has not been made party respondent. It was otherwise necessary when the question for determination of rent has also been raised. For the purpose of determination of rent, trust was necessary party but has not been impleaded as respondents.
13. In view of above, this writ petition suffers from non-joinder of necessary parties and deserves to be rejected on this ground itself.
14. We are however considering even the other arguments raised by the parties. It is not only in reference to the notice issued by the Sub-Divisional Magistrate but about his authority, as well. The facts and record shows that initially this Court nominated the Sub-Divisional Magistrate as a receiver and later on the Principal Secretary, Department of Religious Affairs, State of U.P. The Principal Secretary, Department of Religious Affairs issued an order on 03.08.2016, empowering the Sub-Divisional Magistrate to look after the property in question. The order aforesaid has not been challenged so as to challenge the authority of the Sub-Divisional Magistrate in passing the impugned order. In absence of challenge to the order dated 03.08.2016 of the Principal Secretary, Department of Religious Affairs, State of U.P., we cannot accept the argument raised by learned counsel for the petitioner about the authority of the Sub-Divisional Magistrate to issue the impugned order. Accordingly, the argument in reference to the competence of the authority to pass the impugned order cannot be accepted.
15. The question now remains for determination of rent and its demand. The issue pertaining to determination of rent needs a finding of fact. It has to be ascertained whether there was agreed rent between the parties and if it was then what was the rate. The issues aforesaid needs a finding on the facts. It can be done effectively when the trust is a party and that too, by the civil court. It can be determined after taking evidence of the parties. The question of facts cannot otherwise be determined by this Court while exercising jurisdiction under Article 226 of the Constitution of India. In view of above, we find writ not to be maintainable. The questions of fact can be determined effectively by the civil court. No reason has been given to approach this Court when remedy lies before the civil court. It is when petitioner's mother earlier approached the civil court in reference to the same property when apprehended her eviction from the property. The writ petition would not be maintainable only for the reason that now the order under challenge has been passed by the Sub-Divisional Magistrate. A civil suit is maintainable even against the said order where all the issues can be determined effectively by the civil court.
16. Taking the aforesaid into consideration, we find reasons to accept the arguments raised by learned Standing Counsel and accordingly finding writ petition to be not maintainable not only on the ground of non-joinder of the parties but as it needs determination of question of fact, the same is dismissed.
17. The petitioner would however be at liberty to avail the remedy before the appropriate court for determination of all the issues raised herein.
18. The dismissal of the writ petition would not come in the way of petitioner for the aforesaid.
Order Date :- 27.8.2019 Nitesh