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Judgment
S.U. Khan, J.—Heard learned Counsel for the parties.
Property in dispute is comprised in house No.105/722, Anandbagh, Kanpur Nagar, containing three rooms, Courtyard, latrine and bathroom etc. It is admitted to the parties that in the accommodation in dispute a printing press is being run. At this juncture, it may also be mentioned that the princely rent, which the tenant is required to pay, is Rs.20/ per month. Probably for the years even this rent has not been paid. However, Court is not recording any finding regarding nonpayment of existing rent. According to learned Counsel for the respondent No.2/new landlord, no rent has been paid. Respondent No.2 Uma Kant Tripathi purchased the property in dispute through registered sale deed from the previous landlords on 17/21 February, 2004. Previous landlords were making efforts since 1972 to evict the tenant but of no avail. First of all previous landlords in the year 1972 filed suit for eviction against Brij Mohan father of the petitioner (SCC Suit No.2071 of 1972). The allegation was that accommodation in dispute had been sublet by him to his sister in law i.e., wife of Brij Kishore, real brother of Brij Mohan. (There is another brother of Brij Mohan whose name is Brij Bhushan). Suit was decreed on 14.11.1975. Revision was dismissed and writ petition filed in this Court was also dismissed on 3.9.1976. Thereafter Brij Bhushan one of the real brother of Brij Mohan came forward and asserted that he was the real tenant. His claim was rejected by all the Courts including this Court, which dismissed his writ petition No.4843 of 1981 on 18.5.1981. Thereafter previous landlords filed application for execution of decree obtained by them in SCC Suit No.2071 of 1972. Execution application was registered as execution case No.70 of 1981. Unfortunately the said execution application is still pending. Thereafter one Vinod Kumar Goyal filed application for allotment. The case of previous landlords as well as the present landlord is that Vinod Kumar Goyal was put forward by petitioner Pradeep Kumar. On the application of Sri Goyal, vacancy was declared on the ground that there was eviction decree against the tenant. Thereafter previous landlords filed release application under Section 16 of U.P. Act No.13 of 1972, which was allowed. Revision filed against the same was dismissed. Thereafter writ petition was filed by V.K. Goyal in this Court, which was also dismissed by me on 1.10.2003 (W.P. No.2958 of 1990). While dismissing the writ petition, I also imposed the cost of Rs.15,000/ upon the petitioner V.K. Goyal which according to learned Counsel for the respondent No.2 was never paid. I directed that R.C.& E.O. shall put the landlords respondent Nos.1 to 5 of the said writ petition in possession within one month positively from the date of production of certified copy of the said order. It may be mentioned that release order was never challenged by Brij Mohan, the tenant or after his death by his son the petitioner who succeeded to the tenancy. Learned Counsel for the petitioner states that he was not aware of the release order however I am not expressing any opinion about this aspect of the matter, as it is not relevant for decision of this writ petition.
In pursuance of my order dated 1.10.2003, application for possession under Section 16(4) of U.P. Act No.13 of 1972 was filed by previous landlords before R.C.& E.O./A.D.M. (City), Kanpur Nagar in the form of case No.4 of 2004. Unfortunately before previous landlords could obtain possession, they sold the property in dispute to respondent No.2. According to learned Counsel for the respondent No.2 patience of the previous landlords exhausted and they realized that they would never be able to obtain possession hence they sold the property in dispute. If such a doubt was entertained by the previous landlords then it was unfounded. My order dated 1.10.2003 was so paramount that there was no escape to the R.C. & E.O. from delivering possession to the previous landlord.
After selling the property in dispute previous landlords got their application for possession (which was registered as Case No.4 of 2004), dismissed as not pressed by R.C. & E.O. on 5.4.2004. Thereafter vendee/new landlord/respondent No.2 filed similar application for possession under Section 16(4) of the Act before R.C. & E.O. which was registered as Case No.32 of 2004. Application was filed on 19.7.2004. In the said application on 26.8.2004, order of eviction of unauthorized occupant Vinod Goyal was passed by issuing Form D (Sri Goyal was only applicant for allotment and he was never in possession). In the said case i.e., Case No.32 of 2004, Brij Kishore the third brother of Brij Mohan the original tenant (father of the petitioner) filed objections on 7.10.2004 stating therein that he was the tenant. The said objections were rejected by R.C. & E.O./A.D.M. (City), Kanpur Nagar on 6.1.2005. Revision filed against the said order was also dismissed. Thereafter Brij Kishore filed writ petition being Writ Petition No.18506 of 2006. Hon''ble Krishna Murari, J., dismissed the writ petition on 4.4.2006. In the said judgment it was mentioned, �Both the authorities below have found that he has failed to produce any evidence to establish the fact that he was the tenant.�
In my opinion the dismissal of the said writ petition cannot jeopardize the case of the petitioner. Learned Counsel for respondent No.2 states that in the revision which had been filed by the Brij Kishore against order dated 6.1.2005, the present petitioner was pairokar. In my opinion this fact will also not make much difference.
Thereafter on 17.4.2006 petitioner filed an objection before R.C. & E.O. in Case No.32 of 2004. Copy of the said objection is Annexure 10 to the writ petition. Through this writ petition Pradeep Kumar son of Brij Mohan original tenant has challenged the order dated 6.1.2005. Even though through the said order application/objection of Brij Kishore were rejected however in the said order, it was observed that against unauthorized occupant Form D (for possession) be issued.
Application/objection filed by the petitioner before R.C. & E.O. on 17.4.2006 was dismissed on 27.4.2006. Through amendment said order has also been challenged in this writ petition.
The main point involved in this writ petition is that as to whether the transferee from the landlord who had filed release application on the ground of bona fide need is entitled to the benefit of the release order passed in favour of original landlord, vendor or not. Obviously the answer is in the negative. As far as a decree of eviction passed on the ground of default, subletting and material alteration etc. is concerned, transferee from landlord decree holder is entitled to reap the fruit of the decree by executing the same or by getting himself impleaded in the execution if execution had already been filed by the landlord. However in the matter of release this benefit is not available to the subsequent purchaser, landlord. Release order is passed on the ground of bona fide need of the applicant landlord. Purchaser/new landlord cannot say that he has succeeded to the need also through transfer deed. Subsequent purchaser succeeds only to the right of the landlord or any liability incurred by the tenant in the nature of advantage attached to the property. However release order on the ground of bona fide need is not an advantage attached to the property. It is purely personal to the person in whose favour the said order is passed.
Even though it is writ large on the face of the record that original tenant Brij Mohan, his son (i.e., petitioner) and brOthers of Brij Mohan have used all the tricks available in the book to continue in the possession. Learned Counsel for respondent No.2 has cited several authorities and contended that the tenant has utterly abused the process of the Court hence he is not entitled to any relief. However tenant cannot be evicted on the basis of release order passed on the ground of bona fide need of the previous landlords. As far as present landlord/respondent No.2 is concerned, no finding has been recorded regarding his bona fide need.
In my opinion, the main reason for this long drawn litigation on the part of the tenant is rent of Rs.20/ per month which is virtually as well as actually no rent. Repeatedly this Court is remanding the Legislature to insert a provision in the Rent Control Act for periodical enhancement of rent however it appears that Legislature is not even addressing this question to itself.
In view of the above, I have no option except to allow the writ petition and to direct the R.C.& E.O. to drop the proceedings initiated on the application filed by respondent No.2 for taking possession on the basis of release order, which was passed in favour of previous landlords. However, impugned order in so far as it holds that Brij Kishore is not the tenant is confirmed. The said finding has also been confirmed in the judgment of Writ Petition No.18506 of 2006. By way of abundant precaution, it is amply made clear that apart from petitioner P.K. Awasthy, no other person has got any interest in the tenancy of the accommodation in dispute. No other person shall be permitted to assert otherwise.
I have held in Khursheeda v. A.D.J., 2004 (2) ARC 64, that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act, writ Court is empowered to enhance the rent to a reasonable extent.
Property in dispute consists of three rooms and other amenities and is situate in Kanpur and is being used for residential as well as commercial purpose. Kanpur is the most expensive city of the Uttar Pradesh. In my opinion the current monthly rent must not be less than Rs.5,000/ for such an accommodation. Rent of Rs.20/ per month is virtually as well as actually no rent. It is rather ridiculous.
Accordingly, it is directed that, tenant petitioner shall pay rent to the landlord respondent No.2 at the rate of Rs.2,500/ per month inclusive of water tax etc. No further amount shall be payable by the tenant.
However, it is directed that in spite of the rent being more than Rs.2,000/ per month, U.P. Act No.13 of 1972 shall continue to apply to the building in dispute. I have held in S.C. Kakkar v. A.D.J., 2006 (1) ARC 739, (para 11) as follows:
�This direction of applicability of Rent Control Act inspite of the fact that by virtue of Section 2(g) of U.P. Act No.13 of 1972, the said Act does not apply to any building whose monthly rent exceeds Rs.2,000/ rupees is being issued for the reason that by agreement parties can apply the Rent Control Act to a building to which it is not applicable. The Supreme Court in Lachoo Mal v. Radhey Shyam, 1971 (1) SCC 619, while interpreting old Rent Control Act of U.P. (U.P. Act No.3 of 1947) has held that landlord can legally waive the benefit of exemption clause (Section 1A of the said Act). The Court can also therefore, while enhancing rent for more than Rs.2,000/ can waive the applicability of Section 2(g) of U.P. Act No.13 of 1972.�
As in this writ petition stay order was granted on 1.5.2005 hence rent of Rs.2,500/ shall be payable with effect from 1.5.2006. Rent for the months of May, 2006 to September, 2006 (amounting to Rs.12,500/) shall be paid on or before 7.10.2006. In case this rent is not paid within the stipulated time then this order shall stand automatically vacated and writ petition shall stand dismissed. In case rent is not accepted by respondent No.2 then it may be paid through draft drawn in favour of respondent No.2 and handed over to his learned counsel in this Court. In future also the rent at the rate of Rs.2,500/ per month shall be paid by 7th of each succeeding month.
However, it is clarified that if respondent No.2 applies for impleadment in the execution case No.70 of 1981 then impleadment must be allowed. However tenant petitioner shall be permitted to raise all permissible objections in the said execution application.
Accordingly writ petition is allowed.
It is needless to add that respondent No.2 and/or previous landlords are entitled to recover the unpaid rent if any due until April, 2006 at the old rate of Rs.20/ per month for which they may initiate proper proceedings.
Learned Counsel for the respondent No.2 states that V.K. Goyal and Brij Kishore have not paid the costs imposed against them through earlier judgments of this Court dated 1.10.2003 and 4.4.2006. Previous landlords/respondent No.2 may certainly initiate proceedings against them for recovery of the same. For the said purpose, petitioner may apply before the District Magistrate under Rule 24 of the Rules farmed under U.P. Act No.13 of 1972.
(Petition allowed)