CHANDRA SHEKHAR Vs. ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) THIS writ petition has been filed by Chandra Shekhar, the tenant of premises No. 87/141, Chandika Devi Road, Kanpur. Respondent No. 3 is, admittedly, its landlord and owner. An application under Rule 6 of Rules framed under the U.P. (Temporary) Control of Rent and Eviction Act, 1947 was filed by Respondent No. 3 on 18 -11 -1971. During the pendency of this application U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the new Act') came into force with effect from 15 -7 -1972. The application under Rule 6 of the old Act made by Respondent No. 3 was converted into one under Section 16 of the new Act. The dispute which arose for decision before the Prescribed Authority after the conversion of the application into one under Section 16 of the new Act, was whether the premises in question was vacant to which Section 16 of the said Act could apply.

(2.) THE case of Respondent No. 3 was that the Petitioner had allowed the said premises given to him in his occupation as a tenant to be occupied by one Rafiq and as the possession of Rafiq was all exclusive for himself, therefore, the building was to be deemed to have ceased to be occupied by the Petitioner. The application was contested by the Petitioner on the ground that he was the real and genuine tenant of the premises in question and Rafiq was simply holding the premises on his behalf, and, therefore, there was no vacancy which could entitle the Respondent No. 3 to file an application for release in his favour. Being of the opinion that the premises was not required by Respondent No. 3, the application filed by him was rejected on 3 -12 -1972. Against the judgment of the Prescribed Authority, an appeal was filed by Respondent No. 3 before the District Judge under Section 18 of the new Act. The Petitioner also filed a cross objection against the finding of the Prescribed Authority holding that he was not in occupation of the premises. Both the appeal and the cross objection were decided by means of a common judgment dated 18 -1 -1974. The appeal filed by Respondent No. 3 was allowed whereas the cross objection preferred by the petitioner was dismissed. As a result of the order made by the learned District Judge the application for release of Respondent No. 3 in respect of the shop in dispute stood allowed. Aggrieved, the Petitioner has filed the present writ petition.

(3.) COMING to the merits, submission of the learned Counsel for the Petitioner was that the District Judge did not properly consider the case set up by the Petitioner. He urged that the Petitioner as well as Respondent No. 3 had made an admission from which it was clear that the Petitioner was accepted to be a tenant of the premises by Respondent No. 3. He contended that from that admission it was also clear that Respondent No. 3 agreed that Rafiq had no concern with the disputed shop. The submission made by the learned Counsel for the Petitioner has not impressed me. Reading the statement made by the counsel before the learned District Judge, it appears that the Respondent No. 3 did not admit that the Petitioner had not ceased to occupy the premises, and that the same was not in the exclusive possession of Rafiq. The crux of the matter is that the Respondent No. 3 did not make any such statement. So far as the merits of the case are concerned, the learned District Judge found that the Petitioner had ceased to occupy the premises, and that he had allowed it to be occupied by Rafiq, who was admittedly not a member of his family. This finding of the learned District Judge is one of fact and it is not possible to reverse the same in these proceedings as the High Court exercising the powers under Article 226 of the Constitution does not sit as an appellate court.