MANNILAL Vs. IST ADDL. DISTRICT JUDGE

JUDGEMENT

(1.) AFTER having lost revision before IXth Additional District Judge, Kanpur Nagar, the Petitioner has filed this writ petition to challenge the order of revision dated 11 -3 -1991. The petitioner claims to be tenant in a part of house at a monthly rent of Rs. 35/ - since September, 1974 with the consent of the owner Brij Kumar Misra who is respondent No. 3. The petitioner was declared illegal occupant by the Rent Control and Eviction Authority by his order dated 11 -5 -1988. The property in question was released in favour of respondent No. 3 by an order dated 22 -8 -1990. The petitioner filed a revision against, the order dated 22 -8 -1990 in which he challenged the order dated 11 -5 -1988 also. The learned counsel for the petitioner has argued that the petitioner was tenant with the prior permission of the owner. Since September, 1974, there was no vacancy and the report of the Inspector that the petitioner was a licensee for a month only was wrong. He stated that he was tenant with the consent of the landlord, therefore, premises should not have declared vacant nor could summary proceeding be taken against the petitioner unless agreement between him and the owner was prayed to be cancelled. To spell out the agreement, the petitioner has relied on the statement of respondent No. ' 3 in which respondent No. 3 is said to have stated that the property in question was under the tenancy of one Ram Shanker Awasthi. After he vacated the possession of the property, the petitioner requested for permission to stay in the property for one month. The petitioner was never his tenant nor did he accept him as tenant. Learned counsel for the petitioner has submitted that the petitioner was not occupant since 1985 and he was tenant with the permission of the landlord because he had entered in the premises with the express permission of respondent No. 3 which would! make him a tenant. He has relied on Ajay Garg v. Additional District Magistrate and others. : 1988 (14) ALR 204 In that case the petitioner seems to have been occupying the premises with a written consent of the landlord; therefore, he was entitled to be treated as tenant. The judgment reported in Sri Tulsi Singh v. The Vth Addl. Distt. Judge, Kanpur and another,, 1978 ARC p. 160 deals with the deemed vacancy. It is contended by learned counsel for the petitioner that no vacancy can be deemed if the landlord has allowed the premises in question to be occupied by the petitioner who is not member of his family. Munni Devi v. Radha Devi,, 1989 (15) ALR 238 lays down that agreement of tenancy made between the parties in contravention of Sections 11 and 13 would bind the parties only and not the authority. Reliance is placed on Navin Chandra Sharma v. VIth Addl. Distt. and Sessions Judge, Meerut and others,, 1983 (Vol. 1) ARC p. 50 Learned Counsel for the petitioner submits on the basis of this authority that if the contract of tenancy was held void or bad then alone proceeding under the Act of 1972 would lie, otherwise a regular suit was required to be brought for eviction of the petitioner. At the admission stage, Mr. Agarwal appeared and opposed the admission of the writ petition. It was contended by him that the petitioner was occupying the premises as a licensee from 1985, therefore, Section 14 of the Act of 1972 would not make the petitioner as a tenant with the consent of the landlord. It is also argued that under Section 13 of the Act of 1972, the petitioner shall not be regarded as the lawful occupant because he occupied the building as licensee without any order of allotment or release.

(2.) THE petitioner, in short, terms himself as a tenant which is refuted by the other -side. He was granted permission to be a licensee for one month and the terms that as a contract of tenancy. This contention is completely devoid of force. The landlord has never accepted the petitioner as tenant. In fact the erstwhile tenant gave up the possession and the petitioner on his own was permitted to occupy the premises for one month alone. Therefore, he cannot be more than licensee for one month. His possession is from 1985, therefore, he cannot take benefit of Section 14 of the Act of 1972. The petitioner has lost sight of one important fact, that is there is no proof that he was paying the rent or he has ever offered to pay the rent for occupation of the premises in question. There can be no 'tenancy without payment of rent. The petitioner has not proved that he had paid the rent or tendered the same, or in the event of owner's refusing to accept it, deposited the same under law.

(3.) THE courts below have as a matter of fact, found that the petitioner was not a tenant but was unauthorised occupant. Therefore, he was declared as unauthorised occupant. This Court cannot disturb that findings of fact. The order of release in favour of the landlord also cannot be challenged by the petitioner. The petitioner has raised some disputed questions of fact which cannot be gone into in this writ petition. There is concurrent findings of fact against the petitioner which cannot be upset by this Court in its writ jurisdiction under Article 226 of the Constitution of India. Mr. Agarwal's objection to the admissibility of the writ petition is, therefore valid. For the reasons stated above, there is no merit in this writ petition and it is dismissed in limine. However, there will be no order as to costs.