NIRMAL AGARWAL Vs. PRADEEP KUMAR GUPTA

JUDGEMENT

(1.) All the above referred petitions involve identical questions of law and facts. The petition, being Matters under Article 227 No. - 3112 of 2023 is being treated as the leading petition and the facts pertaining to the same are being considered for deciding the controversy involved. Heard Shri Rishabh Agarwal, learned counsel for the petitioner and Smt. Rama Goel Bansal, learned counsel who has put in appearance on behalf of the sole respondent.

(2.) The petition, being No. 3112 of 2023, under Article 227 of the Constitution of India has been filed questioning the order dtd. 1/3/2023 passed by the Addl. District Magistrate (EC)/Rent Authority, Agra in Case No. 1116 of 2022 (Pradeep Kumar Gupta versus Nirmal Kumar Agarwal). A suitable direction to the Addl. District Magistrate (EC)/Rent Authority, Agra to adjudicate upon the issue of maintainability of the application under Sec. 10 of the U.P. Act No. 16 of 2021 at the instance of the sole respondent has been sought. By the order impugned, the Addl. District Magistrate (EC)/Rent Authority, Agra has entertained the application of the sole respondent for determination of rent under Sec. 10 of the U.P. Act No. 16 of 2021 without considering the objection of the tenant petitioner to the maintainability of the application itself granting liberty to take all objections at the time of filing reply to the application under Sec. 10 of the Act. The undisputed facts necessary for adjudicating the controversy involved in the instant petition under Article 227 of the Constitution of India are that the petitioner herein is tenant of a shop on the ground floor of property No. 31/58- 59, Kokamal Market, Rawatpara, Agra let out to him by Seth Girwar Lal Pyare Lal Shiksha Trust. The petitioner has been regularly tendering the rent of the tenanted premises to the aforesaid Trust and receipts have been issued by the Trust. It has been submitted that an application under Sec. 10 of the Act for determination of the rent of the premises has been filed by the sole respondent Shri Padeep Kumar Gupta in the capacity of Secretary of Girwar Lal Pyare Lal Shiksha Trust. The said application under Sec. 10 has been objected to by the petitioner by filing an application dtd. 20/1/2023 under Order 7 Rule 11 CPC read with Sec. 34 (1) (h) of the U.P. Act No. 16 of 2021. In the said application besides an objection as to the deficiency in the payment of the Court Fee, the petitioner has raised specific objection to the maintainability of the application at the behest of the respondent on the ground that the Trust has not been impleaded as a party to the application under Sec. 10 of the U.P. Act No. 16 of 2021. Learned counsel for the petitioner submits that the learned Addl. District Magistrate (EC)/Rent Authority, Agra has manifestly erred in not considering the objections of the petitioner to the maintainability of the application and instead of deciding the same upfront has directed the petitioner to instead file his written statement and take all objections which shall be considered at the time of final arguments.

(3.) Learned counsel for the petitioner vehemently submits that an application under Sec. 10 of the U.P. Act No. 16 of 2021 can be filed only by the landlord. As per Sec. 2(b) of the U.P. Act No. 16 of 2021 'Landlord' means a person who receives or is entitled to receive the rent of any premises and includes a Trustee. The respondent admittedly is only a Secretary of the Trust. The Secretary of the Trust is not statutorily recognized as Landlord and even though he may be entitled to collect rent, at best, he would qualify as a property Manager under Sec. 2 (d) and a property manager has not been conferred with any rights to institute any application on behalf of the Landlord for determination of rent or for eviction. Learned counsel for the petitioner has tried to draw a distinction between the definition of 'Landlord' as contained in U.P. Act No. 13 of 1972 and U.P. Act No. 16 of 2021. Landlord as per the U.P. Act No. 13 of 1972 in relation to a building has been described to mean a person to whom its rent is or if the buildings were let, would be payable and includes except in Clause (g) the agent or attorney, or such person. Thus, according to learned counsel for the petitioner under the U.P. Act No. 13 of 1972 it is only the actual owner or person authorized by him for receiving notice or letting out the premises who will be the landlord. The position under the U.P. Act No. 16 of 2021 is, however, different and landlord means a person who receives or is entitled to receive the rent of any premises and includes a Trustee. Learned counsel for the petitioner further submits that all the trustees of the Trust have since expired and the respondent cannot continue to act on behalf of the Trust and maintain any application on behalf of the Landlord/Trust. Reliance is placed upon the decision of the Apex Court reported in 2005 (10) SCC 274 and a decision of the co-ordinate Bench of this Court reported in 2017 SCC Online All 1356 to buttress the point that the issue of maintainability of a proceeding is to be decided first before passing any order. It is accordingly prayed that this Court may either decide the issue of maintainability or remit the matter to the Rent Authority for decision on the issue of maintainability.