Heard learned counsel for the parties.
In this writ petition on 02.07.2012, 27.08.2012 and 12.09.2012 following orders were passed:
"02.07.2012: Supplementary affidavit filed by learned counsel for the petitioner is taken on record.
Heard Shri Arun Kumar Singh learned counsel for the tenant-petitioner and Shri Rahul Saxena holding brief of Shri Awadh Bihari Pandey, learned counsel for the landlord-respondent. Judgment reserved.
On the suggestion of the court, learned counsel for the tenant-petitioner has agreed that in case writ petition is allowed then tenant-petitioner would willingly pay rent at the rate of Rs.5,000/- per month from the date on which this writ petition is allowed provided that Rent Control Act is directed to continue to apply on the accommodation in dispute.
27.08.2012: List for further hearing at the top of the list on 5.9.2012 alongwith Writ Petition No.41110 of 2010.
12.09.2012: In this case the judgment had earlier been reserved, however, thereafter, the case was directed to be listed for further hearing as clarification on two points was required. Today, learned counsel for both the parties have again been heard. However, both the learned counsel require some time to give proper reply to the query of the Court.
The query of the Court from the learned counsel for the tenant petitioner is regarding inconsistent user. Both the courts below decreed the suit on the ground of default as well as inconsistent user. However, in the entire writ petition not a single word has been said regarding inconsistent user. On the earlier occasion when arguments were heard and judgment was reserved i.e. on 2.7.2012 no arguments had been raised by learned counsel for the tenant petitioner against the finding of inconsistent user.
The learned counsel for the landlord respondent is required to explain as to how drainage tax which according to para 11 of the plaint comes to Rs.6264/- is required to be paid by the tenant. The trial court in its judgment on page 56 of the paper book has found deficiency of Rs. 1144/-. If drainage tax is not liable to be paid by the tenant then instead of deficiency, the deposited amount would be in excess by about Rs.5000/-.
List for further hearing on 19.9.2012 in top five cases."
This is tenant's writ petition arising out of S.C.C. Suit No.246 of 2005 instituted by landlords respondents against tenant petitioner for his eviction from the accommodation in dispute initially on the ground of default. Thereafter, ground of inconsistent user was also added in the plaint through amendment application. J.S.C.C. Kanpur Nagar through judgment and decree dated 15.11.2010 decreed the suit on both the grounds and directed eviction and recovery of arrears of rent along with damages for use and occupation pendente lite and future. Against the said judgment and decree petitioner filed S.C.C. Revision No.117 of 2000, which was dismissed on 18.10.2011 by A.D.J. Court No.7, Kanpur Nagar, hence this writ petition.
Copy of the plaint is Annexure-I to the writ petition. In Para-11 of the plaint following main amounts were stated to be payable by the tenant:
1. Rent from 01.01.2005 to 20.08.2005 @ Rs.900/- per month = Rs.6900/-
2. Water tax from 01.03.1991 to 20.08.2005 @ 14% = Rs.21924/-
3. Drainage tax from 01.03.1991 to 20.08.2005 @ 4% = Rs.6264/-
The courts below held that there was default in payment of rent from 01.01.2005. The said finding is a finding of fact suffering from no error of law. The tenant petitioner had sought benefit of Section 20(4) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.13 of 1972). The admitted rate of rent was Rs.900/- per month. Petitioner on 07.03.2006 which was first date of hearing deposited Rs.26,700/-. The landlords asserted that the deposit was short by Rs.16173/-.
The question of compliance of Section 20(4) of the Act was considered under issue No.2 by the trial court. Under said issue after giving calculation the trial court held that deposit (towards cost) was short by Rs.1144/-. This point was specifically argued before the lower revisional court that 4% drainage tax was not payable by the tenant and in case the said amount was not included in the payable amount then instead of there being any deficiency in the deposit, the deposit was in excess. The trial court had held that as in the notice by the Nagar Palika under the same demand notice water tax and drainage tax was demanded hence drainage tax was included in the water tax. The alternative reason given by lower revisional court that even if drainage tax was not included in the payable amount still there was deficiency does not appear to be correct as according to para-11 of the plaint itself, the drainage tax was Rs.6264/- and not Rs.382/- as mentioned by lower revisional court. In para-11 of the plaint arrears of drainage tax at the rate of 4% from 01.03.1991 to 20.08.1993 were stated to be Rs.6264/- while in relief clause decree for Rs.1296/- being arrears of drainage tax at the rate of 4% from 29.08.2002 to 28.08.2005 was prayed for.
Accordingly, I hold that the findings that tenant had not deposited entire required amount on first date of hearing is patently erroneous in law and the said findings are set aside.
However, both the courts below decreed the suit on the ground of inconsistent user also as mentioned under Section 20(2)(d) holding that the building was let out for residential purposes but it was also being used for commercial purposes. It is unfortunate that said finding has not been challenged in this writ petition. Neither in any paragraph of the writ petition nor in any of the grounds it is mentioned that the said finding is erroneous in law. Learned counsel for the petitioner referred to ground number G which is to the effect that "Because impugned order is illegal, arbitrary and hit by Article 14 of the Constitution of India." Learned counsel has also referred to paragraph-14 of the rejoinder affidavit wherein it has been mentioned that "Petitioner has never changed the nature of tenancy from the residential to commercial purpose as only mentioning the address disclosed show that house is being used for commercial purpose as no any business is running in that house." Firstly, it has been stated in the rejoinder affidavit and not in the writ petition and secondly, it has not been stated anywhere that findings of the courts below regarding inconsistent user are erroneous in law.
Accordingly, decree of eviction passed by the courts below is to be maintained on the ground of inconsistent user. Decree for payment of rent/ damages for use and occupation is modified and it is directed that the petitioner shall pay all the amounts as mentioned in the impugned decree except drainage tax.
Writ Petition is accordingly disposed of.
Tenant petitioner is granted six months time to vacate on the following conditions.
1. For this period of six months, which has been granted to the tenant-petitioner to vacate, he is required to pay Rs.15,000/-( at the rate of Rs.1500/- per month) as rent/damages for use and occupation. This amount shall be deposited within six weeks before the Prescribed Authority and shall immediately be paid to the landlords-respondents.
2. Within six weeks from today tenant-petitioner shall file an undertaking before the Prescribed Authority to the effect that within six months he will willingly vacate and handover possession of the property in dispute to the landlords-respondents.
3. If within six weeks undertaking is not filed or amount of Rs.15,000/- is not deposited then from today till actual eviction tenant shall be liable to pay Rs.2500/- per month as rent/damages for use and occupation.
4. Similarly if after filing undertaking and depositing the aforesaid amount of Rs.15,000/- property in dispute is not vacated within six months then since after six months till actual vacation tenant petitioner shall be liable to pay rent/damages @ Rs.2500/- per month.
It is needless to add that this direction of payment of Rs.2500/- per month is in addition to the right of the landlords to get the accommodation in dispute vacated through execution.
Order Date :- 21.9.2012 NLY