NEERAJ KUMAR Vs. CITY MAGISTRATE UNNAO

JUDGEMENT

(1.) Heard P.K. Khare learned Counsel for the petitioner and Sri S.K. Mehrotra learned Counsel for the opposite party No. 2. By this writ petition, the petitioner has assailed the interim order dated 4.8.2003 passed by Qty Magistrate, Unnao, the opposite party No. 1, in Suit No. 18 of 1999; Smt. Kalawati v. Neeraj Kumar.

(2.) The brief facts of the case are that the petitioner is the tenant in a, shop located in Mohalla Oontsa at Unnao. It is alleged that the said shop was constructed in the year, 1978 and was first time assessed by the municipality, Unnao in the year of 1979. By an agreement on 15.12.1980, the shop was let out to the petitioner on a monthly rent of Rs. 125/- including the water tax etc. Thereafter, the tenancy was continuing but on 15.9.1997, the opposite party No. 2 filed a Suit No. 10 of 1997 under section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (hereinafter referred to as Act) before the prescribed authority at Unnao alleging that the shop was required for personal use and to establish her son Sri Rajesh Kumar. The said application was dismissed in default on 2.8.1999. However, on 12.10.1999, the opposite party No. 2 has filed another application under section 16(1)(b) of the Act for release of the shop as she needed the same to set up her son in the business. In the said suit, on 11.10.2002, the Rent Control and Eviction Officer directed the Rent Control Inspector to submit his report after inspecting the shop in dispute but the petitioner has challenged the same on 5.2.2003 by filing Rent Control Revision No. 2 of 2003, disputing the jurisdiction of the prescribed authority. On 4.8.2003, the prescribed authority observed that the U.P. Rent Control Act No. 13 of 1972 is applicable in the matter pertaining the shop in dispute, and he has the jurisdiction to decide the application moved under section 16(1)(b), which is to be decided on the basis of the inspection report of the Rent Control Inspector. The liberty was given to the petitioner to file his objection on the report. Being aggrieved against the order dated 4.8.2003, the petitioner has filed the present writ petition,

(3.) With this background, Sri P.K. Khare, learned Counsel for the petitioner submits that the prescribed authority has passed the order without applying his mind. He further submits that the Trial Court can only invoke its jurisdiction on the basis of the averments in the pleadings and not otherwise. The tenancy was created in accordance with law, particularly admitting the premises was not governed by the Act. Thus, applicability, later on, does not touch with the tenancy and as such, the opposite party No. 1 has no jurisdiction at all. He also submits that even otherwise, initiation of the proceedings and its continuance amounts to abuse the power and also apparently without any jurisdiction. Therefore, it suffers from an error, which is apparent on the face of record.