Heard Shri Ashish Kumar Singh, learned counsel for the petitioners. Shri Bal Krishna, learned Standing Counsel appears for the State respondents.
Nawab Jamshed Ali Khan and others, the petitioners in this writ petition have filed this writ petition for setting aside the judgment and order dated 2.7.2007 passed by the Rent Control and Eviction Officer/ City Magistrate, Muzaffarnagar rejecting petitioners' application No. 13/2003 dated 31.12.2003 under Section 21 (8) of U.P. Urban Building (Regulation of Rent and Eviction) Act, 1972 (in short ' U.P. Act No. 13/1972) for enhancing the rent, according to the valuation of the property, and the judgment and order dated 14.12.2007 passed by the Additional District Judge, Court No. 7, Muzaffar Nagar, rejecting Rent Control Appeal No.8/2007 arising out of the order dated 2.7.2007. The Appellate Court has confirmed the findings of the Rent Control and Eviction Officer, that the applicants have not established themselves to be the landlords of the property in dispute and that until such declaration is made by the competent court, the application under Section 21 (8) of UP Act No. 13/1972, is not maintainable.
The application under Section 21 (8) of UP Act No. 13/1972 was filed by the petitioners with the averments that the disputed property and the adjoining property numbered as Bungalow No. 15, Civil Lines, (old No. 24-25 Civil Lines). The property was taken over by Court of Wards, and was let out to various persons. It was released from the Court of Wards in 1954 in favour of Mohd. Aizaz Ali Khan, father of the petitioner nos. 1 to
4. The property in dispute is in possession of the State Government as a tenant and is used as Planning Office, on a rent fixed by the Court of Wards at Rs. 720/- per year. The tenancy of State Government through the Court 2 of Wards is recorded in the Nagarpalika. Mohd. Aizaz Ali Khan was the owner of the property, and after his death, the petitioner-applicant nos. 1 to 4 became the owners and the landlords. They have many other properties in Muzaffarnagar. The petitioner applicants no. 1 to 4 established a firm in the name of M/s National Constructions and put all their properties in common stock of the firm, which came into existence on 26.2.2003 by a Partnership Deed. The applicants petitioner nos. 2, 3 and 4 retired and the firm was reconstituted in which apart from petitioner no. 1, Shri Rajeev Agrawal; Shri Sanjay Swarup and Shri Ranjan Mittal were inducted as partners. A reconstituted deed was executed on 1.5.2003. The property vests in the reconstituted firm on which the provisions of U.P. Act No. 13/1972 were not applicable. The petitioners, however, have a right to get the rent enhanced under Section 21 (8) of the UP Act No. 13/1972. They got a plan prepared from Shri Navneet Kumar Goyal, architect and have got the property valued according to the valuation report dated 30.12.2003. They have assessed the market value of the property at Rs. 9, 36, 33, 404/- and claim that according to Section 21 (8), the monthly rent of the property should be fixed at Rs. 7, 80, 278/-. The property is described as a pucca building at Arya Samaj Road, Civil Lines, North, Muzaffar Nagar with two halls, six rooms and one porch, the boundaries given in the schedule appended to the application.
The application was opposed by the State Government on the ground that the State Government is the owner of 3/4 portion of old No.24-25 Civil Lines by sale deed executed by the Custodian General in favour of the State Government on 3.10.1967, and that the State Government had constructed government houses on the land. The State Government cannot be tenant on the land purchased by it. In paragraph-12 of the written statement, it was stated that the application is opposed on wrong and imaginary, facts and grounds, which are entirely vague with ulterior motives. In paragraph 13 it is stated that the disputed property is situate in the middle of the urban area on Arya Samaj road. It is recorded in municipal records as building No. 24/25 Civil Lines, South, Muzaffar Nagar in Khasra No. 668 area 1.188 hectares. It was in Zamindari area 3 under Mahal Nawab Mohd. Umardaraj Ali Khan Khewat, No. 1/1 of which 2/5 part Jamshed Ali Khan, Khurshed Ali Khan son of Azaz Ali Khan, Amtyaj Begum, Mumtaj Begum daughters of Azaz Ali Khan, were recorded as the owners of Khewat. On 3/5th portion of this Khewat the names of Mumtaj Ali Khan, Imtyaj Ali Khan, Irshad Ali Khan son of Mohd. Umardaraj Ali Khan, Vajid Ali Khan, Aliya Begum, Husanara Begum and Sitara Begum son and daughters of Irshad Ali Khan resident of Pakistan, were entered. Mohd. Umardaraj Ali Khan had five sons, out of which Imtyaj Ali Khan, Mumtaj Ali Khan and Irshad Ali Khan migrated to Pakistan. Their property was declared as evacuee property leaving Shri Izaz Ali Khan and Shamshad Ali Khan. After the death of Shamshad Ali Khan, Shri Azaz Ali Khan became owner of 2/5th share and was recorded in the Nagar Register Malikhan 1355 Fasali (1948AD). The 3/4 share of evacuee brothers was sold by the Custodian in favour of the Government of U.P. through the Governor of Uttar Pradesh by sale deed dated 3.10.1967. Out of the remaining portion half of 1/2 of 2/5 i.e. 1/5 was sold by Nawab Azaz Ali Khan on 25.7.1955 to Lala Kunwar Sen son of Shri Peerumal. He got the property separated and constructed a house over the portion. In this manner out of Khasra No. 668 area 1.188 hectare, Lala Kanwar Sen is the owner of 1/5th part, and that the applicants petitioner nos. 1 to 4 as heirs of Mohd. Azaz Ali Khan became owners of 1/5th share. On the spot 3/5th share purchased by the State Government from the Custodian General and 1/5th share of the petitioners applicants no. 1 to 4 is in single compound numbered as Bungalow No. 24-25, on which the State Government is in possession.
It was specifically denied in the objections that the State Government is the tenant of the property in dispute and that the applicants are the owners and landlords. There is no relationship of landlord and tenant between them. No notice is given under Section 80 of Code of Civil Procedure and that the application under Section 21 (8) of the UP Act No. 13/1972 is not maintainable. The State Government also objected to the exorbitant valuation worked out by the applicants. The Rent Control and Eviction Officer found that in order to entertain application under Section 4 21 (8) of the UP Act No. 13/1972 there should be relationship of landlord and tenant between the parties. There was no evidence on record to show that the State Government was occupying the portion of the property in dispute as tenant of the applicants petitioners. There was no contract of tenancy between them nor any rent was agreed to be paid. The appellate court reiterated the findings and held that there was no concrete evidence on record to show that there was landlord and tenant relationship between the parties.
Section 21 (8) of UP Act No. 13/1972 provides as follows:-
"21 (8) Nothing in clause (a) of sub-section (1) shall apply to a building let out to the State Government or to a Local Authority or to a public sector corporation or to a recognised educational institution unless the Prescribed Authority is satisfied that the landlord is a person to whom clause (ii) or clause (iv) of the Explanation to sub-section (1) is applicable:
Provided that in the case of such a building the District Magistrate may, on the application of the landlord, enhance the monthly rent payable therefor to a sum equivalent to one-twelfth of ten per cent of the market value of the building under tenancy and the rent so enhanced shall be payable from the commencement of the month of tenancy following the date of the application:
Provided further that a similar application for further enhancement may be made after the expiration of a period of five years from the date of the last order of enhancement."
Sub section (8) was inserted in the Act by UP Act No. 28 of 1976, and by the same Act, clauses (ii) and (iv) of the explanation in sub section
(i) of Section 28 were omitted. A Full Bench of this Court in Shiv Narain Chaudhary vs. District Judge, Allahabad 1982 A.R.C. 441 (FB) overruled the Division Bench judgment in Om Kumar vs. District Judge 2008 ARC 144, and approved the decisions in Life Insurance Corporation of India vs. District Judge 1981 ARC 264 and Radha 5 Krishan vs. State of UP and ors 1981 ARC 31. It held that repeal of clauses (ii) and (iv) of the explanation of sub section (1) of Section 21 will not have any effect on the right of a landlord in respect of a building to which clause (a) of sub section (1) does not apply for enhancement of monthly rent of a building let out to the State Government or to a Local Authority or to a Public Sector Corporation or to a recognized educational institution. The proviso to sub section (viii) gives a right to the landlord to enhance the monthly rent payable to a sum equivalent to 1/12 of 10% of the market value of the building.
In the present case, there is no written contract of tenancy in respect of the portion of which the rent is sought to be enhanced between the applicants petitioners and the State Government. There was no agreement, or the rent receipt filed on record to establish the tenancy. The appellate court therefore rightly confirmed the findings of the Rent Control and Eviction Officer that until a declaration is made by the competent court of the existence of contract of tenancy, the rent cannot be enhanced under Section 21 (8) of UP Act No. 13 of 1972.
Shri Ashish Kumar Singh submits that it is admitted that out of five sons of Mohd. Umardaraj Ali Khan, three had migrated to Pakistan and two remained in India. There was no partition between the five brothers and thus until the shares of the three brothers were separated under the Evacuee Interests (Separation) Act, 1951, the declaration of evacuee property and the consequent sale was illegal and inoperative. A composite property could not be acquired by the Central Government under Section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and thus the sale is without jurisdiction and void. He has relied upon Smt. Masoom Bano vs. Hari Singh and others AIR 1974 Allahabad 162; Dr. Zafar Ali Shah and others vs. The Assistant Custodian of Evacuee Property, Jhansi and others AIR 1967 Supreme Court 106; and further submits that if the lessor purchases the lessees interest, the lease is extinguished. The same is not true if one of the lessees purchases only a part of the lessor's interest. He also relies upon Badri Narain Jha vs. Rameshwar Dayal Singh AIR (38) 1951 SC 186 for the proposition. He submits that 6 Sheikh Jamaluddin Ansari vs. XIIth Additional District Judge, Moradabad and others 1992 (2) ARC 553 and Smt. Sarju Devi and others vs. The Prescribed Authority, Kanpur 1976 AWC 752 the tenant purchases a share of landlord interests and becomes a co-owner. It was held that in such case the lessee will not cease to be a tenant.
In Smt. Masoom Banoo (supra) the Court found that she was co tenant of the land with Abu Zafar. Shri Abu Zafar migrated to Pakistan and his half share was declared as evacuee property. Smt. Masoom Banoo applied for the separation of her interest in the composite property. The competent authority under Evacuee Interests (Separation) Act, 1951 decided to separate the evacuee interest and to execute a sale deed in her favour. The Custodian appears to have executed a sale deed of the half evacuee share in favour of respondent Hari Singh in 1960. The Court rejected the plea of adverse possession of Hari Singh and allowed the appeal observing that the property was admittedly composite property. It could not have been acquired by the Central Government and there was thus no question of its transfer to Hari Singh.
In Dr. Zafar Ali Shah (supra) the Constitution Bench held that no property can be declared to be evacuee property unless a notice is given to the person under Section 7 of the Administration of Evacuee Property Act, 1950.
Shri Ashish Kumar Singh submits that the sale deed in favour of the State is void and in operative and could be avoided by the applicants to claim enhancement of rent.
In this case the Court is not concerned with the declaration of title or the validity of sale of the evacuee property by Custodian in favour of the State. The necessary pleadings for submitting, that the evacuee's interest was not separated, were not made in the application for enhancement of rent, nor a argument was advanced before the Prescribed Authority or in the appellate court. There is no foundation of facts, that no notice is given under Section 7 to the evacuees, or that the evacuee Interest was composite and was not separated. The entire argument has been raised by learned counsel appearing for the petitioners from para-13 of the objections in 7 which certain facts were brought on record namely that 3/5th share declared as evacuee property was sold by the Custodian in favour of the State. There are no pleadings to the extent that no notice was given under Section 7 of the Administration of Evacuee Property Act, 1950 or that the property was composite and the evacuee interest was not separated before it was declared as evacue property and sold to the State.
The applicants were not claiming enhancement of the rent of the entire property including 3/5th share purchased by the State Government. They were concerned with 1/5th share of which a description is given in the application.
The Custodian executed a sale deed in favour of Government of Uttar Pradesh on 3.10.1967. The boundaries of property sold by the sale deeds are described as follows:-
"SCHEDULE Acquired property known as Umar Manzil situated in proper Muzaffarnagar with all fixtures and fittings and tress within the boundaries mentioned below sold for Rs. 1,45,000/- (Rupees One Lakh Forty Five Thousand Only):- Compound wall in WEST belongs to the evacuee department and is a part of Umar Manzil.
Compound wall in SOUTH belong to the evacuee department and is a part of Umar Manzil.
Compound wall in EAST belongs to Sri Surendra Prakash S/o Kunwar Jagdish Prasad of Muzaffarnagar. Compound wall in NORTH belongs to Sri Kunwar Sain S/o Sri Beru Mal of Muzaffarnagar.
Sd/-illegible 03.10.67 (B.M. Lal) Managing Officer Acquired Evacuee Property MEERUT."
In the application dated 31.12.2003 filed after 36 years and in which the sale was not challenged, the property of which, the State was alleged to 8 be the tenant and for which the rent was sought to be enhanced, is described as follows:-
The applicants have not denied that half of the property of which they claim to be the owner was sold to Lala Kunwar Sen Son of Peru Mal by sale deed dated 25.7.1955 executed by Nawab Aizaz Ali Khan. If the property was in the name of Aizaz Ali Khan upto the year 1955 when he sold 1/5th share of the property to Lala Kanwar Sen, unless the dates when he died and the dates, when his three sons left for Pakistan were brought on record, it cannot be said that the property was composite and that the composite evacuee interest could not be sold to the State Government.
Further, it is to be noticed that there is no averments on record to show that there was any contract of tenancy between the applicants- petitioners and the State. The applicants-petitioners, therefore, failed to prove that they were owners and landlords, and were entitled to receive rent from the portion in occupation of the State. The application under Section 21 (8) of UP Act No. 13/1973, was thus not maintainable.
The writ petition is dismissed.
Dt.25.1.2010 RKP