JUDGMENT A.K. Yog, J.
1. Heard Sri D. K. Khanna, advocate on behalf of the petitioner and perused the record.
2. At the outset it may be noted that respondent No. 2/Batool Ahmad had put in appearance by filing vakalatnama of Sri A. N. Sinha, advocate whose name appears in the cause list. However, no counter-affidavit has been filed (as borne out from office report dated 5.7.2005).
3. Through present writ petition under Article 226, Constitution of India, Mohd. Sayeed seeks to challenge impugned order dated 6.1.1994 (Annexure-14 to writ petition) passed by Delegated Authority/R.C. and E.O./Additional City Magistrate Vth, Kanpur Nagar in Case No. 109 of 1993, Mohd. Saeed Khan v. Batool Ahmad. Premises in question is House No. 105/134-comprising-one room, one varandah, court yard, latrine, bath room situate on ground floor situate in Kanpur Nagar in pursuance to the remand order dated 27.2.1993 passed by the then Additional District Judge in Rent Revision No. 52 of 1992, Batool Ahmad v. Mohd. Saeed Khan and Ors. whereby matter was remanded to the Delegated Authority for deciding afresh the question whether 'Batool Ahmad in possession of the house in question, was admitted as tenant with the consent of landlord/owner of the house on or before 5.7.1976, i.e., the commencement of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment Act), 1976 and his possession over the house in question without valid allotment order even though provisions of U. P. Act No. 13 of 1972 were applicable, stood regularized in view of Section 14 of the said Amended Act.'
4. There is no dispute that Sayeed Ahmad is the owner/landlord of the house in question which was initially let out to one Mohd. Haneef for rent at the rate of Rs. 10 per month.
5. According to landlord, erstwhile tenant Mohd. Haneef, without his consent/knowledge or permission, admitted Maqbool Ahmad who was not member of the family of erstwhile tenant Mohd. Haneef to reside with him in the premises in question and as soon as he came to know Maqbool Ahmad's unauthorized occupation, vacancy was intimated to Rent Control and Eviction Officer, on February 23, 1983. Rent Control Inspector, after inspection, submitted report on 28.2.1983 putting on record that Mohd. Haneef was the tenant who no more continued as such and Maqbool Ahmad was in possession of the house in question. According to Rent Control Inspector, there was vacancy. Report of RCI dated 28.2.1983 is Annexure-1 to the writ petition. Para 3 of the RCI report shows that erstwhile tenant Mohd. Haneef inducted one Maqbool Ahmad about two months earlier (i.e., in December, 82/January, 83). ARO report dated 15.10.1985/Annexure-2 to the writ petition shows that house in question was found locked on the said date but one Anwarul Hasan (living opposite to premises in question) informed that Batool Ahmad (brother of Maqbool Ahmad) was living in the said house for the last 2-2.1/2 years, i.e., on or about early 1983. Copy of affidavit of Maqbool Ahmad (filed by him along with application dated 4.9.1989/Annexure-4 to the writ petition) filed before Delegated Authority shows that release order-obtained by landlord at one stage was challenged by him. The case filed by Batool Ahmad was withdrawn. Maqbool Ahmad continued to contest the release order, in favour of landlord at least till the date of challenge of said affidavit, i.e., April 29, 1987.
6. Copy of memorandum of revision filed by Batool Ahmad before the District Judge, Kanpur under Section 18, U. P. Act No. 13 of 1972 against release order dated 29.4.1987 is Annexure-6 to the writ petition. Said memorandum of revision contains brief facts as narrated by Batool Ahmad. Relevant passage from the said memorandum of revision reads :
The revisionist has been lawful tenant in occupation of the accommodation consisting of two rooms, angan, kitchen, latrine and bath on the ground floor of premises No. 105/134 Saida Bagh Chamanganj, Kanpur, since the month of July, 1975 and the opposite party No. 1 Sri Mohd. Sayeed Khan is the landlord thereof. The revisionist has been paying rent to the landlord from July, 1975. Formerly the revisionist was living with one Sri Mohd. Hanif in the said accommodation with the consent and permission and within the knowledge of the opposite party No. 1 Sri Mohd. Haneef who retired and left for good with bag and baggage after retirement leaving the revisionist in sole occupation thereof. Thereafter rent was enhanced from Rupees 10 to Rs. 20 per month by the opposite party No. 1 which also the revisionist has been paying to the opposite party No. 1. No rent receipt was ever issued. Thus, the revisionist has been in occupation of the accommodation in question with the consent and permission of the opposite party No. 1 and within his knowledge and has been paying rent to him. His tenancy stood regularized under Section 14 of U. P. Act XIII of 1972.
7. From the aforesaid statement of facts narrated by Batool Ahmad himself it is clear that he got possession of the house in question with the permission of erstwhile tenant Mohd. Haneef in July, 1975. It is also clear that Mohd. Haneef left the premises after his retirement leaving the premises in sole occupation of Batool Ahmad ; no rent receipt was ever issued in the name of Batool Ahmad at relevant time, i.e., on or before 5.7.1976.
8. From the averments made by Maqbool Ahmad it is clear that he contested release order on the ground of his own possession at least till September, 1989. (See affidavit of Maqbool Ahmad dated 4.9.1989/ Annexure-4 to the writ petition). In para 13 of said affidavit, Maqbool Ahmad stated that the house in question was not in good condition and the same was made habitable by expending handsome money.
9. Learned counsel for the petitioner in the light of the aforesaid circumstance referred to impugned judgment and order dated 6.1.1994 to point out that said impugned order suffers from manifest error apparent on the face of record inasmuch as delegated authority failed to appreciate that mere possession, without evidence or material to show that it was without consent of landlord or that landlord had knowledge that said Batool Ahmad was claiming himself independent tenancy right in the house in question exclusively and independently that of erstwhile tenant/Mohd. Haneef was not enough to confer rights of regularisation under Section 14 of U. P. Act No. 13 of 1972 (as amended by Amending Act, 1976). Section 14, as amended by Amending Act, 1976, reads :
14. Regularisation or occupation of existing tenants.--Notwithstanding anything contained in this Act or any other law for the time being in force, any licence (within the meaning of Section 2A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement shall be deemed to be an authorized licensee or tenant of such building.
10. Perusal of Section 14 (aforequoted) shows that regularisation of occupation can be claimed only when such person is inducted as a tenant in the premises in question with the consent of landlord on or before 5.7.1976. This implies that person who wants to seek regularisation must establish that he was inducted as tenant and that such induction was with the consent of landlord on the relevant date.
11. It is pointed out by learned Counsel for the petitioner that before the delegated authority petitioner placed reliance upon horoscope of Batool Ahmad's child dated 12.2.1975, post cards and inlands, assessment orders of local body pertaining to 1973-78 with the name of Mohd. Haneef, 1987-92 with the name of Batool Ahmad and affidavit dated 8.11.1993 to prove possession and to show that repairs were not done with the consent of landlord.
12. The Delegated Authority, however, while discussing aforesaid material on record has not discussed and specifically referred to the said documents except observing that Batool Ahmad was in possession since 1973 and that certain repairs were got done by him without protest/objection by the landlord but still the delegated authority observed that Batool Ahmad was living in the house in question and got repairs done without protest of landlord, proved possession before 5.7.1976 and referred to O.S. No. 1889 of 1989 filed by landlord against Batool Ahmad pending in the Court of A.C.M.M. VIII, Kanpur, failed to appreciate that mere possession or occupation of the house in question was not enough. The delegated authority failed to appreciate that Batool Ahmad had to establish that he claimed his possession as tenant in his own right (and not as guest or licensee) with the consent and knowledge of the landlord and that he has proclaimed his status and rights as tenant, mere possession will not entitle him to claim regularization under Section 14 of the Act.
13. Benefit of regularization under Section 14 of the Act, could be claimed only when Batool Ahmad went to the extent of establishing and proving on record that when erstwhile tenant Mohd. Haneef vacated the premises, he was allowed to retain possession of the accommodation in question in his right as tenant with the consent of the landlord.
14. From the evidence filed by Batool Ahmad and referred in the impugned order, which is rent receipt issued in the name of Mohd. Haneef after 5.7.1976, only indicates that when Maqbool Ahmad was living with his brother Batool Ahmad was allowed to enter in possession without consent or knowledge of the landlord to accept him as tenant. Batool Ahmad has come up against landlord without proving that landlord had allowed him to live as tenant.
15. In absence of finding on essential ingredients, viz., possession of Batool Ahmad as 'tenant' was with or without the consent/ knowledge of the landlord is conspicuously missing.
16. In that view of the matter, no benefit of regularization under Section 14 of the Act could be conferred. Consequently, impugned judgment and order dated 6.1.1994 suffers from manifest error apparent on the face of record.
17. In the result, impugned judgment and order dated 6.1.1994/ Annexure-14 to the writ petition is set aside.
18. Writ petition stands allowed.
19. No order as to costs.