Dismissed

Afroz Ahmad and Another v. Additional District JUDGE-13, Allahabad

Allahabad HC3 May 2018WRIA/10785/2018

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the rejection of an application for release of premises under the U.P. Rent Control Act. The Court held that the petitioners could not approbate and reprobate by claiming authorized tenancy below and unauthorised occupancy here, finding no ground to interfere.

What did the court decide?

Writ petition dismissed; tenants directed to vacate the house forthwith.

Afroz Ahmad and Another Vs Additional District… — Landlord and Tenant | Allahabad HC (2018)

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Court No. - 26

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Case :- WRIT - A No. - 10785 of 2018

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Petitioner :- Afroz Ahmad And Another Respondent :- Additional District Judge-13, Allahabad Counsel for Petitioner :- Santosh Kumar Kesarwani,Rajesh Kumar Counsel for Respondent :- Hasan Abbas

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Hon'ble Mrs. Sangeeta Chandra,J.

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(ORAL)

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This writ petition has been filed praying for a writ in the nature of certiorari for quashing the order dated 01.08.1997 passed by the Prescribed Authority/Special Chief Judicial Magistrate, Allahabad in P.A. Case No. 67 of 1986 (Mirza Mohammad Mehdi and others vs Mohammad Shafiq and others) and also praying for quashing of the order dated 30.11.2017 passed by the learned Additional District Judge, Court No. 13, Allahabad in Rent Appeal No. 109 of 1997 (Afroz Ahmad and another vs Mirza Mohammad Mehdi and others).

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Learned counsel for the petitioners has submitted that respondent No. 3, (now deceased) had filed an application for release of the premises in question, which is a residential house, under section 21(1) (a) of the U.P. Act No. 13 of 1972

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before the Prescribed Authority registered as P.A. Case No. 67 of 1986. He has read out the contents of the plaint to show that the landlord had pleaded that originally the tenant of the property in question was one Mohammad Shafiq and Mohammad Shafiq had built his house in Guru Teg Bahadur Nagar, Awas Yojna, Allahabad and shifted most of his domestic belongings to the said house and was not residing ordinarily in the disputed premises, but had given its keys to his relatives i.e. his cousins Afroz Ahmad and Firoz Ahmad, both sons of Zubair Ahmad, and they had no authority to live in the house in question, and the house in question was required to meet out the growing needs of the large family of the three brothers Mirza Mohammad Mehdi, Mirza Haidar Mehdi and Mirza Qamar Mehdi, all now deceased, and arrayed through their legal heirs as respondents in this writ petition.

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Learned counsel for the petitioner submits that from admission in the plaint itself, it appears that the tenants-petitioners were sub-let the property in question and in fact were unauthorized occupants, and therefore, application for release

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under section 21(1) (a) ought not to have been entertained at all and ought not to be maintainable before the Prescribed Authority. At best an application under sections 12 or section 15 or section 16 of the Act could have been moved by the landlords for eviction of unauthorised occupants and declaration of vacancy and release in favour of landlords, which was not done. This ground was raised regarding non-maintainability of the application under section 21(1) (a) in the written statement filed by the respondents in paragraph 18 specifically. In the grounds taken in the memo of appeal also. Ground No. 9 related to section 12 and the maintainability of application thereunder and non-maintainability of P.A. Case before the Prescribed Authority. This ground was not dealt with at all either by the Prescribed Authority or by the Appellate Authority while deciding the release application.

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Learned counsel for the tenants-petitioners has also argued that only Mirza Mohammad Mehdi was the owner and landlord of the house in question as Mohammad Shafiq was depositing rent under section 30 of the Act in favour of Mirza Mohammad

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Mehdi, and his two brothers Mirza Haidar Mehdi and Mirza Qamar Mehdi not belonging to the family of Mirza Mohammad Mehdi as defined under section 3(g) of the Act, their need could not have been considered as the bona fide need of the landlord Mirza Mohammad Mehdi. This fact was also pleaded before the Prescribed Authority and the Appellate Authority, but they have not considered this ground in the orders impugned.

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Learned counsel for the tenants-petitioners has read out relevant paragraphs relating to findings recorded with respect to Issue No. 1 and 3 by the Prescribed Authority. The Prescribed Authority has found on evidence being led that the house in question, namely, House No. 444 situated at Mohalla Dariyabad, Allahabad was infact owned by the maternal grand-mother of the three plaintiffslandlords, and was under joint ownership of the three plaintiffs. This fact was mentioned in the affidavit filed by Mirza Mohammad Mehdi, and it did not seem reasonable that the landlord just to create evidence of bona fide need would take a risk of mentioning on affidavit joint ownership of the property in dispute with his other brothers

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also. The reason given by the Prescribed Authority is also substantiated by the fact that no dead or partition of family property was ever filed at any stage by the tenants-petitioners, although the release application was pending since 1986 and was ultimately disposed of after rejection of appeal in 2017. The petitioner tenant could not gather evidence in 40 years to show that the house belonged to only Mirza Mohammad Mehdi and did not belong to Mirza Haidar Mehdi and Mirza Qamar Mehdi.

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The Paper No. 109 B-3 to 109 B-10 relating to a decree passed in a Civil Suit No. 566 of 1983 by Mirza Mohammad Mehdi for a declaration against one Anand Kumar alias Bhanu Babu regarding ownership of the house in question that has been pointed out by the learned counsel for the tenantpetitioners has been sufficiently dealt with by the Prescribed Authority in its order impugned, wherein he has stated that suit for declaration may have been filed by the elder brother Mirza Mohammad Mehdi against Anand Kumar alias Bhanu Babu, but it was undisputed from a perusal of the judgment and order passed by the learned

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Civil Court itself that the house in question belonged to the maternal grand-mother of three plaintiffs-respondents and had been inherited by them jointly.

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Learned counsel for the tenants-petitioners has also read out the pleadings on record as well as passages from the order passed by the Prescribed Authority that Mohammad Shafiq, the original tenant of the property in question had left the said premises in the possession of the defendant Nos. 2 and 3, i.e. tenants-petitioners, and therefore, he did not contest the release application, and it was allowed ex parte at one time in 1997, later on he filed an application for recall of the order passed ex parte against him. It has come on record of the order passed by the Prescribed Authority that the tenants-petitioners had filed an impleadment application to be impleaded in the aforesaid release application as defendants saying that they were tenants and they were depositing rent to the landlord Mirza Mohammad Mehdi, who at one point time refused to take such rent, and therefore, they tendered rent in the Civil Court under section 30 of the Act.

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With regard to argument made by the learned counsel for the tenants-petitioners that only an application under sections 12 or section 15 or section 16 of the Act was maintainable against unauthorised occupants and not a release application under section 21(1)(a), this Court finds from a perusal of the orders impugned that although the Prescribed Authority and the Appellate Authority have not considered this argument, there are sufficient material available on record for this Court to consider the said arguments and give a finding thereon.

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This Court finds that the tenants-petitioners had filed an impleadment application to be impleaded as defendants No. 2 and 3 in the release application. They had pleaded that they were the tenants and not Mohammad Shafiq of the property in question and they were giving rent to Mirza Mohammad Mehdi.

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In paragraph 2 of the written statement filed by the tenants-petitioners, they have specifically denied that Mohammad Shafiq was the tenant of the property in question, instead it has been

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pleaded that the tenants-petitioners were in occupation of the house as tenants on rent at the rate of Rs. 25/- per month for sufficiently long years, and the plaintiffs-landlords had wrongly impleaded Mohammad Shafiq as tenant only to mislead the Court. They are running their business of making soap in the aforesaid premises with the help of their father.

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In paragraph 7 of the written statement again it has been reiterated by the tenants-petitioners that they alone are the tenants of the property in question, and the plaintiffs-landlords have wrongly impleaded respondent No. 1, Mohammad Shafiq as a tenant. It has also been stated in paragraph 7 that wrong impleadment has been done only so that respondent No. 1 would let the release application go uncontested, and therefore, the tenants-petitioners would be ousted from the house in question, where they are actually living as tenants.

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In paragraph 14 also of the written statement mention has been made of application filed for deposit of rent in court by Firoz Ahmad and Afroz

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Ahmad.

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This Court cannot permit the tenants-petitioners to approbate and reprobate in the same breath. They cannot plead before the learned courts below that they are the tenants in authorized occupation of the premises in question, and plead before this Court that they are unauthorized occupants, and therefore liable to be evicted only by moving application under section 12 of the Rent Control Act.

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There is no factual or legal infirmity in the impugned order. This Court therefore does not find any good ground to show any interference.

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The writ petition is dismissed.

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No order as to costs.

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The Prescribed Authority shall ensure that the house in question is vacated forthwith by the tenants-petitioners, even if it has to resort to taking help of the Police force for doing the same.

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Order Date :- 3.5.2018 Sazia

Afroz Ahmad and Another v. Additional District JUDGE-13, Allahabad

Case brief

What is this about?

What did the court decide?

Afroz Ahmad and Another v. Additional District JUDGE-13, Allahabad

Case brief

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What did the court decide?

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