Prakash Krishna, J. - (1.) SHOP nos. 65 and 66 situate in Mohalla Danganj, Khurja, District Bulandshahr are the subject matter of dispute in the present writ petition. The respondent nos. 3 and 4, who are husband and wife after purchasing the said shops by means of a registered sale deed dated 11-3-1977 from Sri Ram Narain Gaur, Advocate, applied for release of the said shops under Section 12 read with Section 16 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (hereinafter referred to as the said Act) on the ground that the said shops are lying vacant and they have been delivered possession by the erstwhile tenant on 22-4-1977, the shops be released in their favour as they have no other shop in the market to sell the rice manufactured by them and have purchased the shops in dispute for their bonafide need. In support of the said application, the erstwhile tenant, Hukum Chand also filed an application dated 22-4-1977 stating that he has handed over the possession to them. A report from the Rent Control Inspector was called for on the said application for release, who vide his report dated 10-6- 1977 submitted that Amar Nath Sharma the petitioner herein, is claiming his possession over the disputed shops since the year 1961 and according to him Sri Hukum Chand was the tenant for name's sake. The petitioner claims himself as a tenant of the disputed shops, also filed an application dated 10-7- 1979 under Section 14 of the said Act on the ground that he is in possession since the year 1961 and is carrying on the business in commission agency of sale of foodgrains and oil seeds in his own rights. Further, it has been stated therein that he was a Munim in the firm M/S Makhan Lal Hukum Chand who closed their business in the year 1961 and the applicant i.e. the petitioner herein, is continuing in occupation as a tenant since then and his occupation was always with the consent of the landlord who has been receiving rent from him regularly. His possession stood regularised on the commencement of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 (hereinafter referred to as the Act), vide Annexure-5 to the writ petition. An objection to the said application was filed by the contesting respondents no. 3 and 4, the purchasers and the landlords on the ground that Amar Nath Sharma who was a Munim in the firm M/S Makhan Lal Hukum Chand has not carried on any business in his own account from the shops in question. He carried on the work of Munim of the tenant Makhan Lal Hukum Chand. The said case further finds corroboration from the fact that it is Hukum Chand Industry who applied for and was granted licence from Mandi Samiti since the years 1973-74 and 1974-75 through Amar Nath Sharma Manager of Hukum Chand Industry, signed by Amar Nath Sharma. A dispute thus arose between the parties with regard to the status and nature of possession, if any, of the petitioner over the shops in question. The petitioner applied for regularisation of his possession under Section 14 of the Act and claimed himself to be a tenant since before the commencement of the said Act while the case of the respondents landlords, on the other hand, was that it was Hukum Chand who was the tenant and he continued to be so and the petitioner was a Munim and as such, he could not acquire the status as that of a tenant. The parties led evidence, oral and documentary, in support of their respective cases. The respondent no.2, the Rent Control & Eviction Officer/ Sub Divisional Magistrate, Khurja by the impugned order held that the possession of the petitioner could not be regularised as he was not in occupation of the disputed shops on the relevant date "as a tenant" with the "consent of the landlord". He was working as a Manager in the firm of the erstwhile tenant Hukum Chand and as such, the possession of the petitioner cannot be regularised under the aforesaid Section. Consequently it, by the impugned order dated 1-7-1981 dismissed the said application, the revision against which has also been dismissed by the respondent no. 1 being not maintainable. The revisional court held that the order notifying the vacancy is not revisable under Section 18 of the Act. Be that as it may, the learned counsel for the parties jointly agreed that since the matter is old one, the writ petition itself may be decided on merits notwithstanding whether the revision was maintainable or not. Sri A.K. Goel, learned counsel for the petitioner submits that there is voluminous evidence on record to show that the petitioner has been in occupation of the disputed shops since the year 1961. Sri Ram Narain Gaur, Advocate who was erstwhile owner and landlord of the disputed shops used to collect the rent from the petitioner against rent receipts. Even if the rent receipts were continued to be issued in the name of Hukum Chand , it will not make any difference and the petitioner's occupation is liable to be regularised under Section 14 of the Act as his possession was with the consent of the landlord. Reliance was placed on the affidavit and other documents filed on behalf of the petitioner to show that he was carrying on the business from the said shop. Elaborating the arguments, it was submitted that subsequently the licence was obtained in the name of firm Hukum Chand Industry, as there was a threat of eviction on behalf of then landlords and Hukum Chand consented for using his trade name as there was good relationship between himself and Sri Hukum Chand. This being so, the authority below was not justified in holding otherwise, submits the learned counsel for the petitioner. Sri Vivek Chaudhary, Advocate, learned counsel appearing on behalf of respondent nos. 3 and 4, on the other hand, submits that on own showing of the petitioner, he never came in occupation of the disputed shops as a tenant with the consent of the landlord and as such, the occupation of the petitioner is not liable to be regularised. The findings recorded in the impugned order are essentially findings of fact and are based on relevant consideration and they are not open for scrutiny by this Court, specially in exercise of jurisdiction under Article 226 of the Constitution of India. Considered the respective submissions of the learned counsel for the parties and perused the record. The controversy as mentioned hereinabove, centres round the applicability of Section 14 of the Act which provides for regularisation of occupation of existing tenant to the facts of the present case. The entire thrust of the arguments of the petitioner's counsel is that earlier Hukum Chand was the tenant of the shops in question. The petitioner was working as Munim with Hukum Chand who shifted his business in the year 1961 and since then he has been carrying on the business in the disputed shops under the name and style of 'M/S Lajja Ram Vinod Kumar and Co.' The question thus arises as to whether on these facts, the possession of the petitioner stood regularised after enforcement of U.P. Act No. 13 of 1972 i.e. 15-7-1972 or subsequent to commencement of U.P. Act No. 28 of 1976 which came into force w.e.f. 5-7-1976. It may be noted that earlier cut off date under Section 14 of the Act was 15-7-1972 which was changed to 5-7-1976. The petitioner is claiming regularisation of his possession under the amended Section 14 i.e. w.e.f. 5-7-1976. It has to be found out as to whether the petitioner was in possession as a tenant on 5-7-1976 with the consent of the landlord or not. For the sake of convenience, Section 14 of the Act (as amended) is reproduced below:- "14. Regularisation of occupation of existing tenants- Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2-A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Building (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building. " To attract Section 14 of the Act, the following four conditions are required to be fulfilled: 1. The person claiming benefit must be a licensee or a tenant in occupation of the building.
(2.) THE occupation should be with the consent of the landlord. Such occupation must be immediately before commencement of U.P. Urban Building (Regulation of Letting, Rent & Eviction ) (Amendment) Act, 1976 i.e. 5-7-1976. Against such person no suit or proceeding for eviction is pending before any court or authority on the date of such commencement of the Act. The first and foremost requirement is that a person who is claiming benefit of Section 14 of the Act must be in occupation of the disputed accommodation either as a licensee or as a tenant. Use of words 'licensee' or 'tenant' on its plain language shows that a person who is neither a licensee nor a tenant cannot claim regularisation of his occupation. Section 14 opens with a non obstante clause. It provides overriding effect, over the other provisions of the Act, such as Sections 11 and 14. A conjoint reading of Sections 11 and 14 of the said Act provides that no person shall let any building except in pursuance of an allotment order nor any landlord or tenant shall occupy any building otherwise than an order of allotment or release. If a person occupies a building otherwise than an allotment or release order, he shall be deemed to be an unauthorised occupant of such building or part. The idea of enacting Section 14 of the Act was to regularise the possession of such persons who are in occupation of the accommodation with the consent of the landlord but without an allotment order. Non obstante clause with which Section 14 opens clearly shows the intention of the Legislature to regularise the possession of a tenant or licensee whose occupation is otherwise legal, but in absence of an allotment order is illegal, in view of Sections 11 and 13 of the said Act. To meet this situation, Section 14 was enacted. Therefore, a person who is claiming benefit of Section 14 has necessarily to establish not only his occupation but occupation of a licensee or a tenant. In the present case, the petitioner claimed his possession as of a tenant. The said plea has not been found favour with the authority below on the ground that at the relevant point of time and since before commencement of Amending Act, 1976 it was Hukum Chand, the erstwhile tenant who was in occupation on the cut off date. On scrutiny of the application filed under Section 14 of the Act and the objection to the release application of the landlords, it would be clear that it is admitted by the petitioner that Hukum Chand was the tenant of the shops in dispute. It is also admitted to the petitioner that he was working as Munim in the firm Makhan Lal Hukum Chand. The petitioner claims that Hukum Chand closed his business in the year 1961 and thereafter he came into occupation of the disputed shops which is being denied by the contesting respondents. The contesting respondents, in their objections to the application for regularisation, stated in paragraph-6 that the petitioner was a servant in the firm Hukum Chand Ram Chand and used to work in that capacity. He applied for grant of licence in the name of Hukum Chand Industry in the years 1973-74, 1974-75 under his signatures as Manager of Hukum Chand Industry. Interestingly, the petitioner could not dare to controvert the said fact. He tried to wriggle out by saying that since there was some difficulty in obtaining the licence in his name, therefore, he applied for grant of licence in the name of Hukum Chand Industry, vide paragraph-6 of the affidavit of the petitioner (Annexure-13 to the writ petition). The said explanation has been rightly discarded in the impugned order. The petitioner claims that he was permitted to use the name of Hukum Chand Industry by Sri Hukum Chand, but in contra, Hukum Chand came out with a case that he was a tenant of the disputed shops all through and has vacated it on 22-4-1977, vide Annexure-2 to the writ petition. This itself shows that it was Hukum Chand who was in occupation of the disputed shops till 22-4-1977, on the relevant date 5-7-1976 and subsequent thereto also. Other aspect of the case is that even if the petitioner was in occupation of the disputed shops, as alleged by him on the cut off date, there is no material on record to show that his occupation was as that of a tenant. He admits that Sri Ram Narain Gaur, who was erstwhile owner of the disputed shops, used to issue the rent receipts in the name of Hukum Chand Ram Chand, vide paragraph-6 of the affidavit of the petitioner (Annexure-13 to the writ petition). Sri Ram Narain Gaur was examined as a witness as P.W.4 in the case. He brought the counter foils of rent receipts since July 1976. He has stated that rent has been paid by Hukum Chand or by Ram Chand and some time by Munim. He has deposed that in none of the rent receipts brought by him rent was paid by Amar Nath Sharma, finds place. In cross examination, he states that he purchased the shops in question in the year 1962 and Sri Hukum Chand and Ram Chand sons of Makhan Lal were the tenants since before and they use to pay the rent. He denied the suggestion that name of the petitioner was written in the counter foils of rent receipts relating to the period 1962-67 under the column of tenant. It may be noticed that the witness has stated that counter foils of rent receipts for the period 1962-67 have been misplaced some where but he brought the counter foils of rent receipts for the relevant period i.e. of the year 1972 and 1976. The learned counsel for the petitioner could not point out anything to discard the said testimony of Ram Narain Gaur. The case of the petitioner that he used to pay the rent is, therefore, not believable and has been rightly rejected by the courts below. The statement of Ram Narain Gaur torpedoed the case of the petitioner that he paid the rent in the name of Hukum Chand Industry. The petitioner himself got examined. In his statement he has admitted that he was working as a Munim in the firm Hukum Chand Makhan Lal. He further states that there is no rent deed in his favour. The rent receipts were used to be issued in the name of Hukum Chand Ram Chand. He has further admitted that there is no such rent receipt in his name. He further accepts that in the rent receipts name of Hukum Chand under the column of 'tenant' has been mentioned. He further states that although he used to pay the rent but he used to pass on the receipts to Hukum Chand. In the cross examination, he has stated that he used to hand over the receipts to Hukum Chand Ram Chand whenever they returned from Calcutta. There is no written document in his favour to show that Hukum Chand Ram Chand ever authorised him to carry on the business in their name. Relevant portion of the statement is reproduced below:-
(3.) GQDQE pUn dk eSustj FkkA nqdku ij cgqr ls yksx ekStwn Fks tcfd jke ukjk;.k xkSM~ th us ;g /kedh nh fd :0 150@& ls :0 300@& fdjk;k fdlh vkneh dk uke ugha crk ldrkA jke ukjk;.k xkSM~ ds fdjk;snkj GQDQEpUn jkepUn th FksA ckn esa dgk fd jlhn GQDQEpUn jkepUn dks ns nsrk Fkk tc og dydRrk ls vkrs FksA GQDQEpUn jkepUn us gh blh uke ls O;kikj djus dh dksbZ rgjhj rks ugha dh Fkh exj ?kjsyw rkYyqdkr dh otg ls btktr ns nh FkhA** The above statement of the petitioner itself is sufficient to discard his case that he came in occupation of the disputed shops 'as a tenant'. The fact that rent receipts were issued in the name of Hukum Chand and he used to pass on the said rent receipts to Hukum Chand and the fact that he was working as a Munim in the shops of Hukum Chand are sufficient to prove the fact that he never came in occupation of the disputed shops nor he acquired any tenancy right in any manner and is an unnecessary intruder and has come on the scene after vacation of the disputed shops on 22-4-1977 by Hukum Chand. Thereafter he started claiming his tenancy right and its regularisation under Section 14 of the Act. The upshot of the above discussions is that on the crucial date i.e. 5-7-1976 on the commencement of amended Section 14 of the Act, it was Hukum Chand who was in occupation of the disputed shops as a tenant and not the petitioner. The petitioner has utterly failed to prove his occupation over the disputed shops. He has also utterly failed to prove that he was in occupation of the disputed shops as a tenant. He could not file any rent receipt issued in his name. On the contrary, all the rent receipts stand in the name of Hukum Chand so also admitted by the petitioner. At this stage, the learned counsel for the petitioner has placed reliance upon Rajendra Nath Tewari and another Vs. IInd Additional District Judge, Allahabad and others, 1981 ARC 271 and two other cases in support of his contention that even if rent receipts were issued in the name of outgoing tenant but the rent was actually paid by the occupant, the possession would be deemed to be regularised under Section 14 of the Act. In my considered view, the cases relied upon by the learned counsel for the petitioner are not helpful and are distinguishable on facts. In the present case, as found above, there is no evidence worth the name that the rent was ever paid by the petitioner to the landlord or that the petitioner was in occupation of the disputed accommodation as a tenant. The petitioner was mere a Munim or servant of the erstwhile tenant Hukum Chand and as such, he was never in occupation of the disputed shops as an occupant. The word 'occupation' as contemplated under section 14 of the Act is in the sense- 'exclusive actual physical occupation'- in his own right. In Girja Shanker and another Vs. Hriday Ranjan Chakraborty and another 1988(2) ARC 501, the tenant of the premises had left long ago. An employee of the tenant carried on the business therefrom. In such circumstances, the Apex Court has held that benefit of Section 14 of the Act could not be given to such an employee because at no stage the landlord had accepted him as a tenant. In the case on hand, the said pronouncement of the Apex Court is fully applicable. Here also, there is no evidence worth the name that the tenant left at any point of time and handed it over to the petitioner. The petitioner, having failed to prove the ingredients of Section 14 of the Act (as amended), is not entitled to claim regularisation of his occupancy. The authority below has examined the case in detail and correctly applied the principles of law to the facts of the present case. Learned counsel for the petitioner could not point out any illegality therein. Pointedly, a query was put by the Court to refer even a single evidence showing the occupation of the petitioner as a tenant on the relevant date but he failed. The evidence on record, on the other hand, show that it was Hukum Chand who continued to be in occupation of the disputed shops up till 22-4- 1977. The said finding is essentially a finding of fact and is based on relevant material. Even in the sale deed it has been mentioned by the vendor that Hukum Chand Ram Chand resident of Khurja are the tenants on monthly rent of Rs. 150/- of the shops in question. Viewed as above, I do not find any legal infirmity in the impugned order rejecting the application of the petitioner filed under Section 14 of the Act. The shops are vacant and the petitioner is held to be unauthorised occupant thereof and his heirs are liable for ejectment. No other point was pressed. There is no merit in the writ petition. Time to vacate the disputed premises is granted upto 31-8-2009 provided the heirs of the deceased petitioner file an undertaking on affidavit before the Rent Control & Eviction Officer within a period of one month that they will vacate and handover its vacant peaceful possession to the respondent no. 3 and the heirs of respondent no.4 on or before 31-8-2009. They should also pay the damages at the rate of Rs. 5,000/- per month henceforth for the period upto 31-08-2009. In case of failure to vacate the shops in dispute on or before 31-8-2009, the heirs of the deceased petitioner will be liable to pay the damages at the rate of Rs. 15,000/- per month till the date of actual delivery of possession of the shops to the contesting respondents. The writ petition is dismissed with costs of Rs. 10,000/-.;