K.N. Goyal, J. - (1.) THE Petitioner No. 1 the State Electricity Board was tenant of a building, the Petitioner No. 2 being its local Officer, while opposite -party No. 1 was the landlord. Under the proviso to Section 21(8) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 it is open to the landlord of a building let out to the Government or to any public authority to ask for enhancement of the agreed monthly rent to the extent of one -twelfth of ten per cent of the market value of the property. This concession has been given to landlords in order to compensate them for their not being allowed to maintain an application for eviction under Section 21 against such tenants even on the ground of their personal need. The agreed rent of the building was Rs. 200/ - per month. The opposite party moved for its enhancement. The District Magistrate transferred the case to the then S.D.M., Nawabganj. After that incumbent's (Sri Daya Shanker's) transfer from that post the case was decided by Sri Mukesh Mittal, his successor. He held the market value of the building to be Rs. 1,87,266/ - and, accordingly, fixed the enhanced rent as Rs. 1560/ - p.m. An appeal was filed under Section 22 against this order, and the Additional District Judge on that appeal has upheld the order of the said SDM. Aggrieved thereby the Petitioner have filed this writ petition.
(2.) LEARNED Counsel for the Petitioners has urged firstly that Sri Mittal bad no jurisdiction to hear the case. Section 3(c) of the Act defines the District Magistrate as including any officer authorised by him to perform by any of his functions under this Act. It was, therefore, competent for the District Magistrate to transfer the case for disposal to any officer under him. The contention, however, is that the District Magistrate had transferred the case to Sri Daya Shanker, S.D.M. by name, and that after the transfer of Sri Daya Shanker it was not open to the latter's successor to have dealt with the case without a fresh order of delegation from the District Magistrate., It is to be noted in this connection that this point has not been specifically taken any where in the writ petition. It has been sought to be introduced only in the rejoinder affidavit which has been filed today. A rejoinder affidavit cannot be treated as an amendment of the writ petition. The point taken in the writ petition was merely to the effect that the D.M. alone was competent to dispose of the application and that the Assistant Collector/S.D.M., bad no jurisdiction to try the same.
(3.) THIS is ground No. 4 in para 20 of the writ petition. Para 9 also speaks only of the decision having been made by the Assistant Collector/S.D.M., Nawabganj. There is not a whisper to the effect that the originally designated S.D.M. was competent but his successor was not. No mention is made of any of the names of the two officials in the writ petition. Not only this, the appellate judgment shows that only three points were raised on behalf of the Petitioners. Those points are mentioned in para 6 of the appellate judgment. The question of jurisdiction is not one of them. Even before the S D.M. the issue of jurisdiction had been raised at the time when Sri Daya Shanker himself was the S.D.M. and Sri Daya Shanker had rejected that objection on 6 -8 -81. Thus, the statement throughout of the Petitioners was that it was only the District Magistrate who could have heard the case and not any S.D.M. If the dispute bad been only about the identity of the S.D.M. who was competent, then the plea could not have been taken before Sri Daya Shanker. When the matter came up before Sri Mittal, no written objection was taken on the score that it was only Sri Daya Shanker who was competent and that Sri Mittal was not competent. Learned Counsel for the Petitioners has invited my attention to the observation in the judgment of Sri Mittal, annexure -3, which says that according to the arguments of the Petitioners only the District Magistrate had the power to decide the case "now" and that the S.D.M. had no jurisdiction. This objection was disposed of by Sri Mittal by saying that plea of jurisdiction had already been decided on 6 -2 -81. Learned Counsel has urged that the use of the word "now" (ab) indicated that the plea must have been based on the change of incumbency of the office of the S.D.M. The order, however, does not indicate so and the mere use of the word 'ob' cannot lead to this inference. If any such fresh plea had been taken before Sri Mittal he could not have referred to the order dated 6 -2 -81 and if his reliance on that order was incorrect then this would have been raised before the appellate authority. That apart, let us examine the plea even on merits. The annexure 6 filed with the rejoinder indicates that the case had earlier been transferred by the D.M. to the Deputy Collector Incharge of some other sub -division, described as S.D.O. (F). That officer on 22 -9 -80 reported that he was busy with flood relief work and as such if the DM. thought fit the case could be sent to Sri Daya Shanker, S.D.O., Nawabganj. The District Magistrate agreed with the suggestion and endorsed the words ' As proposed". It is only from this note of the S.D.O. (F) and the endorsement as proposed by the Disit. Magistrate that it is suggested that the case was transferred to Sri Daya Shanker by name and not to the S.D.O, Nawabganj, ex -officio. This interpretation is rather farfetched. The underlying intention behind the suggestion of the S.D.O. (F) was that it should be transferred from his Court to any other court and in that context he suggested the court of S.D.O., Nawabganj, which at that time was presided over by Sri Daya Shanker. There is nothing to suggest that either S.D.O. (F) or the D.M. had any special reason to nominate Sri Daya Shanker by name. This is further evident from the endorsement of the same date immediately following the D.M.'s order referred to above whereby the case was transferred to "S.D.O. (N)", which apparently means S.D.O., Nawabganj There is no mention in this subsequent endorsement of the name of Sri Daya Shanker. Thus, it must be inferred that the D.M. bad transferred the case to S.D.O., Nawabganj, and not to Sri Daya Shanker co -nomine. Indeed, if any such point had been specifically taken while the matter was still before Sri Mittal, then it would have been easy for Sri Mittal to have referred the case to D.M. for suitable orders. This having not been pleaded at that stage, it is not open to the Petitioners to take such plea at this late stage. A. It is not a case of inherent want of jurisdiction but only of alleged want of a proper transfer order. In such cases, the view of courts has been not to permit the plea of want of jurisdiction to be taken by the unsuccessful party, vide discussion in Shitla Prasad v. Dy. Director, 1970 ALJ 520. This plea is, accordingly, overruled.;