# Jag Mohan Agarwal v. Smt. Kanchan Kumari Jain

- **Citation:** (2023) 8 ILRA 278
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-03
- **Case number:** Writ A No. 7428 of 2023
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jag-mohan-agarwal-v-smt-kanchan-kumari-jain-50610
- **Pages:** 13

## Headnote

Applicability of Act No. 16 of 2021 -
Tenancy Dispute, Non-Registration of Tenancy
Agreement,
Interim
Rent
Fixation,
Maintainability of Recall Application, Tenancy
Succession:
For
non-residential
tenancies
(Section 6(3)), the tenant's successor must
prove they inherited the business, failing which
the existing tenant remains liable. Tenancy
Agreement Registration: Non-registration by the
tenant does not invalidate proceedings if the
landlord complies with Section 4(3) by filing
particulars. Interim Rent Fixation: The Rent
Authority can fix provisional rent under Section
10(4) based on market rates, and such
decisions must be supported by evidence (e.g.,
comparable rents). Recall Limitations: Section
34 (8) restricts recall applications to procedural
issues like non-service or inability to appear, not
new substantive objections. The proceedings
under
Act
No.
16
of
2021
were
held
maintainable, and the petitioner was confirmed
as the tenant. The interim rent fixation was
deemed lawful and based on market rates. The
court upheld the rejection of the recall
application under Section 34(8), as it only allows
recalls for non-service of notice or inability to
appear,
neither
of
which
applied.
New
objections raised in the recall application were
not permissible.

Citations:

## Text

_Characters 0–39,998 of 43,163. This is a partial read: ask again with offset=39998 for what follows._

278 INDIAN LAW REPORTS ALLAHABAD SERIES

17. In view of reasons recorded above,
the writ petition succeeds to be allowed and
is hereby allowed.

18. A writ in the nature of mandamus
is issued commanding the respondents to
allow the petitioners to join on their
respective posts within a period of six
weeks from the date of production of a
certified copy of this order.

19. No order as to costs.
----------
(2023) 8 ILRA 278
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J

Writ A No. 7428 of 2023

Jag Mohan Agarwal ...Petitioner
Versus
Smt. Kanchan Kumari Jain ...Respondent

Counsel for the Petitioner:
Sri Pankaj Agarwal

Counsel for the Respondent:
Sri Sudeep Harkauli

Applicability of Act No. 16 of 2021 -
Tenancy Dispute, Non-Registration of Tenancy
Agreement,
Interim
Rent
Fixation,
Maintainability of Recall Application, Tenancy
Succession:
For
non-residential
tenancies
(Section 6(3)), the tenant's successor must
prove they inherited the business, failing which
the existing tenant remains liable. Tenancy
Agreement Registration: Non-registration by the
tenant does not invalidate proceedings if the
landlord complies with Section 4(3) by filing
particulars. Interim Rent Fixation: The Rent
Authority can fix provisional rent under Section
10(4) based on market rates, and such
decisions must be supported by evidence (e.g.,
comparable rents). Recall Limitations: Section
34 (8) restricts recall applications to procedural
issues like non-service or inability to appear, not
new substantive objections. The proceedings
under
Act
No.
16
of
2021
were
held
maintainable, and the petitioner was confirmed
as the tenant. The interim rent fixation was
deemed lawful and based on market rates. The
court upheld the rejection of the recall
application under Section 34(8), as it only allows
recalls for non-service of notice or inability to
appear,
neither
of
which
applied.
New
objections raised in the recall application were
not permissible.

Citations:

1. Sana Ullah Vs Ashok Kapil, 1979 ARC 138

2. Neena Jain & ors. Vs St. of U.P. & anr., Civil
Appeal Nos. 1082-2083 of 2017

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Pankaj Agarwal, learned
counsel for petitioner and Sri Sudeep
Harkauli, learned counsel for respondent.

2. Present petition has been filed
seeking following reliefs:-

"i) to issue a writ, order or direction
in the nature of certiorari quashing the order
dated 05.04.2023 passed by Additional
District
Magistrate
(Civil
Supply)/Rent
Authority, Agra as well as impugned order
dated 06.07.2022 passed by Additional
District
Magistrate
(Civil
Supply)/Rent
Authority, Agra.

ii) to issue a writ, order or direction
in the nature of certiorari quashing the entire
proceedings of Case No. 696/2022, Smt.
Kanchan Kumar Jain vs. Jagmohan Agrawal
under section 10(1) of U.P. Regulation of
Urban Premises Tenancy Act, 2021."

3. Learned counsel for petitionerdefendant submitted that premises in
8 All. Jag Mohan Agarwal Vs. Smt. Kanchan Kumari Jain
279
question is a Nazul/Lease land given by the
State Government/Nagar Nigam, therefore,
under the exception of Section 3 of the
Uttar
Pradesh
Regulation
of
Urban
Premises Tenancy Act, 2021 (hereinafter
referred to as 'Act No. 16 of 2021'), Act No.
16 of 2021 would not be applicable in this
case. Though this objection was not taken
against the application filed by respondentplaintiff for fixation of interim rent, but
petitioner-defendant has raised the same
while filing recall application and without
considering the same, recall application has
been rejected under the of provisions of
Section 34(8) of Act No. 16 of 2021. He
firmly submitted that once Act No. 16 of
2021 is not applicable, all proceedings under
the provision of Act No. 16 of 2021 are void
ab-initio. In the present case, remedy before
the landlord is to file SCC Suit under the
Provisions of Provincial Small Causes Court
Act, 1887(hereinafter, referred to as, 'Act of
1887').

4. It is next submitted that from the
day one, the case of petitioner is that he is
never a tenant of the shop in question and
in fact his father was the tenant. After his
death, he has not succeeded his father's
business and as per Section 6(3) of Act No.
16 of 2021, he is not the tenant and tenancy
devolves for remaining period to the
person/family member, who had succeeded
the business of deceased-tenant. Petitionerdefendant has taken this specific ground in
his objection, but rejecting the same, rent
application was decided vide impunged
order dated 06.07.2022 in terms of Section
6(2) of Act No. 16 of 2021, which is for the
purpose of residential tenancy, where the
right of tenancy shall devolve for the
remaining
period
to
his
successors,
therefore, treating the petitioner-defendant
as tenant, order is bad in light of Section
6(3) of Act No. 16 of 2021.

5. He further submitted that Section 4
of Act No. 16 of 2021 provides for tenancy
agreement and in case of only tenancy
agreement, any proceeding may be initiated
under Section 4 of Act No. 16 of 2021.
Tenancy is required to be registered by
submitting joint application or individual
application by the landlord or the tenant
and after that, Rent Authority shall provide
a Unique Identification Number. In the
present case, tenancy agreement has never
been registered either jointly or separately
and no Unique Identification Number has
been allotted, therefore, no proceeding can
be initiated under Section 4 of Act No. 16
of 2021.

6. It is further submitted that Section
10 of Act No. 16 of 2021 provides for Rent
Authority to determine the revised rent in
case of any dispute between the landlord
and the tenant and for that purpose, it is
required on the part of Rent Authority to
determine the rent after application of
mind, but in present case, after deducting
certain amount, rent as proposed has been
approved without application of mind and
any exercise to determine the rent.

7. Lastly, it is submitted that in light
of facts so argued here, neither, proceeding
is maintainable under the law nor on the
facts. Even in case assuming that the Act
No. 16 of 2021 is applicable, even though,
order is bad in light of facts that it has also
not been considered that petitioner is not a
tenant and no rent may be revised under
Section 10 of the Act No. 16 of 2021.

8. Sri Sudeep Harkauli, learned
counsel for respondent-plaintiff raised
preliminary objection and submitted that it
is a factual issue, therefore, it is required on
the part of the petitioner-defendant to file
appeal before the Rent Tribunal under
280 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 35 of the Act No. 16 of 2021
against the order of the Rent Authority
within 30 days from the passing of such
order after depositing 50 per cent of the
entire payable amount determined under
the order of Rent Authority.

9. He also pointed out that in the writ
petition, it is mentioned that lease in
question has expired, which is incorrect,
but in fact, the lease was last renewed on
06.04.2010 and the same is valid up to the
year 2037. Therefore, this ground alone is
sufficient to dismiss the writ petition.

10. It is next submitted that Section 3
of Act No. 16 of 2021 provides that nothing
in this Act shall apply to any premises
owned by Central Government or State
Government
or
Union
territory
Administration
or
a
Government
undertaking or enterprises or a statutory
body or Cantonment Board. He further
submitted that definition of premises is
given in Section 2(c) of Act No. 16 of 2021
which means building and the land around
it for the purpose of business or residence
use. In the present case, there is no dispute
on this point that only land was given on
lease and so far as building on land is
concerned, which constitues premises, is
undisputedly constructed and owned by the
plaintiff-respondent. In present petition it
has not been disputed that building is not
owned by the petitioner, but owned by the
State Government or State Authorities as
defined under Section 3 of Act No. 16 of
2021. He also pointed out renewal of lease
deed on 06.04.2010 and invited attention of
this Court to paragraph Nos. 5 & 6 of the
lease deed, which clearly shows that in case
of expiry of lease deed, an evaluation has to
be made on a building constructed over the
leased land and be given to building owner.
There is also certain provisions with regard
to dispute of evaluation, which is not
relevant in the present case. He further
submitted that definition of premises is
exhaustive, therefore, nothing beyond that
may be travelled by any Court of law. In
the present case, only land is given on lease
and that doesn't come within the definition
of 'premises' as provided under Section
2(c) of the Act No. 16 of 2021. Therefore,
provisions of Act No. 16 of 2021 would be
very well applicable in the present case. In
support of his contention, he has placed
reliance upon the judgement of this Court
in the matter of Sana Ullah Vs. Ashok
Kapil:1979 ARC 138.

11.

Learned
counsel
for
the
respondent-plaintiff next submitted that so
far as denial of tenancy is concerned, this
fact is also absolutely incorrect. He further
submitted that as per written statement filed
by the petitioner-defendant, tenancy was
not denied and even it is mentioned in the
written statement that he is not in
possession of the premises in question for a
period of more than 10 years, meaning
thereby that prior to that, he was having
possession over the premises in question.
He further submitted that up to 2014, rent
receipt was duly signed by the petitionerdefendant, which is annexed alongwith the
counter affidavit. Not only this, a court
agreement had also taken place on
23.8.2012 upon which, petitioner-defendant
has put his signature in the capacity of
tenant. Thus, denial of tenancy is vague,
not supported by any document in light of
facts mentioned hereinabove. In case of any
family settlement or any other reason about
shifting of tenancy, the same must have
been brought on record by the tenant before
the Rent Authority, which is missing in the
present case. Therefore, under such facts of
the case, petitioner has rightly been treated
as tenant.
8 All. Jag Mohan Agarwal Vs. Smt. Kanchan Kumari Jain
281

12. He also pointed out that many
documents have been brought on record
while filing recall application. There is
provision under Section 34(8) of the Act
No. 16 of 2021 about the recall of order
and according to that, recall application is
not maintainable. Therefore, any new
document brought on record through recall
application cannot be seen at this stage and
only at the most, it may be seen while
deciding the rent application finally as it is
only interim determination of rent and not
final. Therefore, he reiterated that any
document so filed with recall application
cannot be read in light of fact that the recall
application is not maintainable other than
an ex-parte order as provided under Section
34(8) of the Act No. 16 of 2021, which is
not the case of petitioner-defendant.

13. He next submitted that so far as
registration of rent agreement under Section 4
of the Act No. 16 of 2021 is concerned,
respondent-plaintiff
has
submitted
the
information as per First Schedule as provided
under Section 4(1) of the Act No. 16 of 2021
before the Rent Authority and registration
had not taken place because petitionerdefendant refused/failed to furnish any relevant
information. He next submitted that petitionerdefendant has made this specific averment
about First Schedule of Section 4(1) of the Act
No. 16 of 2021 which is mentioned in Para 18
of the counter affidavit. First Schedule has also
been annexed alongwith particulars of the
building and as well name of the tenant, i.e.
Jagmohan Agarwal, who is petitioner-herein.
Therefore, conditions so mentioned in Section 4
of the Act No. 16 of 2021 has been very well
complied by the respondent-plaintiff. Hence
proceeding of arrears of rent is very well
maintainable.

14. He further invited attention of this
Court to Section 4(3) of the Act No. 16 of
2021. He submitted that first proviso to
Section 4(3) of the Act No. 16 of 2021, i.e.
4(3)(a) is applicable in the present case,
which provides for tenancy created before
the commencement of this Act and further
provides that in case landlord and tenant
jointly fail to present a copy of the
agreement or fail to reach an agreement
within specified period, such landlord and
tenant shall separately file particulars about
such tenancy before the Rent Authority
within one month from the date of expiry
of the period mentioned in Clause 4(2). If
the landlord has submitted its particulars
within the specified period, but tenant
failed to submit the same, then landlord
may file an application for eviction on this
ground alone. He also pointed out that next
proviso provides that during such eviction
proceeding, Rent Authority shall also
decide the interim rent payable by the
tenant during such adjudication. In the
present case, it is admitted that petitionerdefendant has not complied with Section 4
of the Act No. 16 of 2021, therefore, this
cannot be a ground favourable for the
petitioner-defendant. There is no such
exception that in case of failure on the part
of landlord or the tenant, proceeding cannot
be initiated rather he submitted that in case
petitioner-defendant fails to comply with
Section 4(2) & 4(3) of the Act No. 16 of
2021 and after submission of agreement by
landlord, he may proceed for eviction.
Therefore, in light of Section 4 of the Act
No. 16 of 2021, the present proceeding is
very well maintainable.

15. He next submitted that so far as
maintainability of proceeding is concerned,
a bunch of civil appeals were pending
before the Apex Court for the same market
in question, i.e. Labh Chand Market, Rajaki
Mandi, Agra. The market is owned by joint
family of respondent-plaintiff and while
282 INDIAN LAW REPORTS ALLAHABAD SERIES
deciding the civil appeals, Apex Court had
made an observation that provision of new
Act, i.e Act No. 16 of 2021 would apply to
principle of revision of rent to existing
holders of tenancy also and thus, there
remains no doubt about it. So far as the
claim of arrears as submitted by learned
counsel for the respondent-plaintiff is
concerned, that also have to be dealt with
under the provisions of Act No. 16 of 2021.

16. He next submitted that Apex
Court has separately dealt with the civil
appeals filed by the family members of the
respondent-plaintiff in relation to similarly
situated shop in the same market and set
aside the orders passed by the Revisional
Court and the trial Court rejecting the suits
under Order VII Rule 11 CPC and restored
suit for reconsideration on the basis of Act
No. 16 of 2021.

17. He firmly submitted that Supreme
Court itself has held that Act No. 16 of
2021 would be applicable to the shop in
question that is situated in the same market.
Therefore issue of applicability of Act No.
16 of 2021 cannot be raised, once it is
upheld by the Supreme Court.

18. He further submitted that he has
taken specific averment in paras 4, 5, 6 and
7 of the rent application mentioning the
rent of four shops in the same area in the
same market, i.e. Labh Chand Market,
Rajaki Mandi, Agra alongwith assessment
of area made by ADM (FR) for a period
between 2004 to 2012 and according to
that, annual rental value comes to Rs.
10,000/-. He also submitted that in para 6,
he has given the name of tenant, namely
Virendra Kumar Sharma with shop No.
29/296/24, who is paying Rs. 22,000/- per
month for shop in the same market. Not
only this, in para 7, there is specific
averment that Rent Authority vide its order
dated 22.12.2021 has revised the rent of
shop
No.
29/296A/29(New
No.
29/296/A/5), Labh Chand Market, Rajaki
Mandi, Agra as 750 per sq. feet and the
same has been fixed by the Rent Authority
in the present case considering the fact that
this shop is also situated in the same area
and same market, i.e. Labh Chand Market,
Rajaki Mandi, Agra.

19. He also submitted that in the
objection filed by the petitioner-defendant
before the Rent Authority, there is no denial
of the facts so mentioned in paras 4, 5, 6
and 7 of the rent application filed by the
respondent-plaintiff. Therefore, contention
of the petitioner-defendant that there is no
determination of rent is absolutely incorrect
as
in
the
same
market,
there
is
determination of rent by the Rent Authority
coupled with the other facts so mentioned
in paras 4, 5, 6 and 7 of the rent
application. Therefore this argument is also
not sustainable.

20. In the rejoinder argument, learned
counsel
for
the
petitioner-defendant
submitted that while using the word
'premises', intention of legislation is
something different. It does not mean that
only land is to be occupied or owned by the
State Government, whereas, the building is
to be owned by the lessee. In fact, meaning
of word 'premises' includes land in
question as well as building raised upon
that, though it is constructed by lessee.

21. He also reiterated that while
deciding the interim rent, there is no
discussion made by the Rent Authority
even with regard to facts so mentioned in
paras 4, 5, 6 and 7 of the rent application,
but Rent Athourity straight away has fixed
the rent, which is bad.
8 All. Jag Mohan Agarwal Vs. Smt. Kanchan Kumari Jain
283

22. I have considered the rival
submissions made by learned counsel for
the parties, perused the record, relevant
provisions of Act No. 16 of 2021 as well as
judgments relied upon.

23. There is provision of appeal under
Section 35 of the Act No. 16 of 2021 and it
is required on the part of the petitionerdefendant to first exhaust the alternative
remedy so available, but in the present
petition, issue of applicability of Act No. 16
of 2021 is involved, which is absolutely a
legal question, therefore, present petition is
entertained and Court proceeded to decide
the petition.

24. The very first issue argued before
this Court is about the applicability of new
Act, i.e. Act No. 16 of 2021. Learned
counsel for the petitioner-defendant has
placed reliance upon Section 3 of the Act
No. 16 of 2021, which is relevant in the
present dispute. The same is being quoted
hereinbelow:

"3. Act not to apply to certain
premises.-(1) Nothing in this Act shall
apply to any-

(i) premises owned by the Central
Government or State Government or Union
Territory Administration or a Government
undertaking or enterprises or a statutory
body or Cantonment Board;

(ii)
premises
owned
by
a
company, University or organisation given
on rent to its employees as part of service
contract;

(iii) premises owned by religious
or charitable institution as may be
specified,
by
notification
by
State
Government;

(iv) premises owned by Auqaf
registered under the Waqf Act, 1995 (Act
No. 43 of 1995) or by any public trust
registered under applicable law;

(v) other building or category of
building specifically exempted in public
interest by notification by the State
Government.

(2)
Notwithstanding
anything
contained in sub-section(1), if the owner
and tenant of the premises referred to in
clause (i) to clause (v) of the said subsection agrees that the tenancy agreement
entered into between such landlord and
tenant be regulated under the provisions of
this Act, such landlord may inform the Rent
Authority of the agreement to do so at the
time
of
information
of
the
tenancy
agreement under Section 4."

25. From the perusal of the above
quoted provision, it is apparently clear that
this Act would not apply in case premises is
owned by Central Govt. or State Govt. or
Union Territory Administration
or
a
Government undertaking or enterprises or a
statutory body or Cantonment Board.

26. Now, learned counsel for the
respondent-plaintiff while opposing the
submission made by learned counsel for the
petitioner-defendant has placed reliance
upon Section 2(c) of the Act No. 16 of
2021, which is bing quoted hereinbelow:

"2. Definition.- In this Act, unless
the context otherwise requires,-

(c)
"premises"
means
any
building or part of a building which is, or
is intended to be, let on rent for the purpose
of residence or for commercial or for
educational use, except for industrial use
and includes-

(i) garden, garage or closed
parking area, vacant land, grounds and
out-houses, if any appertaining to such
building or part of the building; and
284 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) any fitting to such building or
part of the building for the more beneficial
enjoyment thereof, but does not include
premises such as hotel, lodging house,
dharamshala or inn;"

27. Section 2(c) defines the premises.
The word 'premises' means building
alongwith land around it for the purpose of
business or residential use. So far as
present dispute is concerned, as to whether
the premises or only the land was leased
out by the State authorities or any other
municipal authority. In the present case,
there is no dispute that only the land was on
lease having no building upon that and
undisputedly the building was constructed
by the respondent-plaintiff. Therefore, the
word premises cannot be read as only land,
but it includes building also, which has
never been leased out in the present case.
The definition of word 'premises' is very
exhaustive and no interpretation can be
made beyond that and certainly in the
present case, only the land is owned and
leased out by the State authorities as
mentioned in Section 3(i) of the Act No. 16
of 2021 and not the building, therefore, the
property in dispute includes land and
building both and it is not covered with the
exception of Section 3(i) read with Section
2(c) of the Act No. 16 of 2021. The very
same ratio of law has also been followed by
the
Court
in
the
matter
of
Sana
Ullah(Supra).

28. The definition of premises under
Section 2(c) of the Act No. 16 of 2021 is
also parimateria to the definition of
building given in Section 3(i) of the U.P.
Act No. 13 of 1972 and this was the subject
matter of judgment of this Court in Sana
Ullah(Supra) and the Court in the said
judgment is of the view that if the
definition is very exaustive, it is not
possible to read it as something else, which
is not stated therein. Relevant paragraphs of
aforesaid judgment are being quoted
hereinbelow:-

"14. The expression "building"
has been defined in Section 3(1) as
follows:--

'Building', means residential or
non-residential
roofed
structure
and
includes--

(1) any land (including any
garden), garages and out-houses,

appurtenant to such building;

(ii) any furniture supplied by the
landlord for use in such building;

(iii) any fittings and fixtures
affixed to such building for the more

beneficial enjoyment thereof.

15. Since the definition above
uses the word "means", it is clear that the
definition is exhaustive, and that it is not
possible to read in it something which is
not stated therein. The definition clearly
shows that in order to fall within it, there
must be a roofed structure. If, therefore,
there is no roofed structure, the premises
cannot be a building. Apart from the
meaning given in the Act, what is a
'building' must always be a block of brick
or stone work, covered in by a roof. The
roof need not be laid with lintel or other
similar constructions. The ordinary and
natural meaning of the word "building"
includes the fabric and the ground on
which it stands. It is a structure roofed in
and capable of upholding protection and
shelter. Therefore, similar roofless Ahata
which merely surrounds a piece of land,
though stayed and tied together, is not a
building within the definition given above.
The next question that arises for decision in
this case is whether a construction should
be a building on the date of allotment as
well or that if it is found to be a building on
8 All. Jag Mohan Agarwal Vs. Smt. Kanchan Kumari Jain
285
the date when it is vacated, that alone
should be sufficient for passing an
allotment order.

29. From the perusal, it is apparently
clear that definition of 'building' in Section
3(i) of the Act No. 16 of 2021 and
definition of premises in Section 2(c) of the
Act No. 16 of 2021 are similar and very
exhaustive, which includes land also.
Therefore only land cannot be said to be
'premises'. In the present case, only land
was leased out by the State authorities and
that cannot be said to be a premises.
Therefore, exception of Section 3(i) of the
Act No. 13 of 1973 would not be applicable
in the present case.

30. Plaintiff-respondent has moved
rent application for enhancement of rent
under Section 10 of the Act No. 16 of 2021.
Section 10 of the Act No. 16 of 2021 is
being quoted hereinbelow:

"10.
Rent
Authority
to
determine the revised rent in case of
dispute-(1) In case of any dispute
between the landlord and the tenant
regarding revision of rent, the Rent
Authority may, on an application made by
the landlord or tenant determine the
revised rent and other charges payable by
the tenant and also fix the date from
which such revised rent becomes payable.

(2) In determining the rent to be
revised, the rent Authority may be guided
by the prevailing market rent in the
surrounding areas let out on rent.

(3) Once a determination under
this section has been made, no application
for fresh determination shall lie for a
period of one year after the
said
determination.

(4) The Rent Authority may
determine provisional rent during the
proceedings for revision of rent which shall
be subject to final determination."

31. Under Section 10(4) of the Act
No. 16 of 2021, there is provision for Rent
Authority to fix provisional rent during the
proceeding of revision of rent, therefore,
order of Rent Authority is well within its
authority conferred upon it under the
provision of 10(4) of the Act No. 16 of
2021.

32. The next argument of learned
counsel for the petitioner-defendant is that
under Section 6(3) of the Act No. 16 of
2021, which says that tenancy devolves for
remaining period on the person who has
succeeded the business of the deceased
tenant and in the present case, petitionerdefendant had not succeeded any business,
therefore, he is not a tenant as provided
under Section 6(3) of the Act No. 16 of
2021.

33. This argument of the learned
counsel for the petitioner-defendant arises
from the interpretation of Section 6 of the
Act No. 16 of 2021 and relevant part of the
same is being quoted hereinbelow:

"6. Rights and obligations of
successor in case of death-(1) The terms of
agreement executed between landlord and
tenant, shall be binding upon their
successors in the event of the death of the
landlord or tenant, as they case may be,
and in such case, the successor of the
deceased landlord or tenant shall have the
same rights and obligations as agreed to in
the tenancy agreement for the remaining
period of such tenancy.

(2) In the event of death of a
tenant, of residential tenancy, the right of
tenancy shall devolve for the period of
tenancy on his successor, namely:
286 INDIAN LAW REPORTS ALLAHABAD SERIES

Spouce; son or daughter or where
there are both son and daughter, both of
them; parents; daughter-in-law, being the
widow of his pre-deceased son widowed or
divorced sister:

Provided that the successor has
ordinarily been living in the premises with
the deceased tenant up to the date of his
death.

(3) In the event of death of a
tenant of a non-residential tenancy, the
right of tenancy shall devolve for the
remaining period of tenancy on the person
who has succeeded the business of
deceased tenant."

34.

Learned
counsel
for
the
respondent-plaintiff has argued that in the
written statement, it is mentioned that
petitioner-defendant was in possession of
the premises in question for a period of
more than 10 years up to 2014. Rent receipt
was
duly
signed
by
the
petitionerdefendant, which is part of counter affidavit
and the court agreement dated 23.08.2012
is also signed by the petitioner-defendant in
the capacity of tenant. These facts are
undisputed.

35. Once it is admitted that petitionerdefendant was in possession of shop in
question for more than 10 years, signed the
rent receipt up to 2014 and also put his
signature in the capacity of tenant in a court
agreement, he cannot deny the tenancy.

36. Learned counsel for the petitionerdefendant could not bring any document on
record to show that at any stage of time,
due to family settlement or any other
reason, tenancy was shifted to other family
members, who succeeded in the business.
Therefore denial of tenancy by the
petitioner-defendant cannot be accepted.
He has to be treated as tenant.

37. It is also the case of the petitionerdefendant that though he has not taken
objection against the rent application filed
by the respondent-plaintiff for fixation of
rent, but he has raised the same objection
by filing recall application, which was
rejected in light of Section 34(8) of the Act
No. 16 of 2021. It is his case that once the
Act No. 16 of 2021 is not applicable in his
case, all proceedings are bad and therefore
in recall application, issue of applicability
of Act No. 16 of 2021 has to be considered.

38. This argument of learned counsel
for the petitioner-defendant is based upon
interpretation of Section 34(8) of the Act
No. 16 of 2021, which is being quoted
hereinbelow:

"34. Powers of Rent Authority
and Rent Tribunal.- (1) The Rent Authority
and
the
Rent
Tribunal
shall,
for
discharging their functions under this Act,
have the same powers as are vested in a
Civil Court under the Code of Civil
Procedure, 1908(Act No. 5 of 1908) for the
purpose of,:

(8) The Rent Authority may set
aside or recall any order passed ex-parte if
the aggrieved party files an application and
satisfies it that the notice was not duly
served or that he was prevented by any
sufficient cause from appearing when the
case was taken up for hearing."

39. From the perusal of aforesaid
provision, it is apparently clear that Section
34(8) of the Act No. 16 of 2021 clearly
provides that Rent Authority may set aside
the recall application on the ground that
notice has not been served or he was
prevented from appearing when the case
was taken up. It is not the case of the
petitioner-defendant. He has duly received
the notice, filed objection, therefore in light
8 All. Jag Mohan Agarwal Vs. Smt. Kanchan Kumari Jain
287
of Section 34(8) of the Act No. 16 of 2021,
Rent Authority cannot travel beyond that
and any new fact or objection or paper
except the service of notice for non
appearance as referred in Section 34(8) of
the Act No. 16 of 2021 cannot be accepted.
Rent Authority has rightly rejected recall
application
filed
by
the
petitionerdefendant.

40. There was another argument of
learned counsel for the petitioner-defendant
about the interpretation of provision of
Section 4 of the Act No. 16 of 2021.
Relevant paragraph, i.e. 4(1), 4(2) & 4(3)
are being quoted hereinbelow:

"4, Tenancy Agreement.- (1)
Notwithstanding anything contained in this
Act or any other law for the time being in
force,
no
person
shall,
after
the
commencement of this Act, let or take on
rent any premises except by an agreement
in writing, which shall be informed to the
Rent Authority by the landlord and tenant
jointly, in the form specified in the First
Schedule within a period of two months
from the date of tenancy agreement.

Provided
that
in
cases
or
residential tenancies for a period of less
than twelve months, the landlord and
tenant shall not be required to inform the
Rent Authority about such tenancy.

(2) Where the landlord and the
tenant fail to jointly inform the execution of
the tenancy agreement referred to in subsection(1), the landlord and tenant shall
separately inform the execution of tenancy
agreement to the Rent Authority within a
period of one month from the date of expiry
of the period specified in sub-section(1)

(3) Where, in relation to a
tenancy created before he commencement
of this Act,-

(a) if an agreement in writing was
entered into between the landlord and the
tenant, they shall jointly present a copy
thereof to the Rent Authority within three
months of the commencement of this Act.

(b) if no agreement in writing was
entered into, the landlord and the tenant
shall enter into an agreement in writing
with regard to that tenancy and present the
same to the Rent Authority within three
months of the commencement of this Act:

Provided that where the landlord
or the tenant fail to present jointly a copy of
the tenancy agreement or fail to reach an
agreement within specified period, such
landlord and tenant shall separately file the
particulars about such tenancy with the
rent Authority within one month from the
date of expiry of period mentioned in
clause (b) above, in the form specified in
Ffirst Schedule. If the landlord has
submitted
his
particulars
within
the
specified period but tenant fails to submit
such particulars, the landlord may file an
application for eviction on this ground
alone;

Provided further that during such
eviction proceedings, the Rent Authority
shall, notwithstanding anything contained
in this Act, decide interim rent payable by
the tenant during such adjudication."

41. From the perusal of Section 4(2)
and 4(3) of the Act No 16 of 2021 it is
apparently clear that in case a joint tenancy
agreement has not been filed by the
landlord and the tenant, it is open for the
landlord and the tenant to file separate
particulars of such tenancy within one
month before the Rent Authority in the
form prescribed in the First Schedule. In
the present case, the respondent-plaintiff
herein has submitted particulars of tenancy
in the form prescribed in the First Schedule
and there is no denial of this fact either
288 INDIAN LAW REPORTS ALLAHABAD SERIES
before the Rent Authority or before this
Court. Therefore, in light of Section 4(2)
and 4(3) of the Act No. 16 of 2021,
proceeding under the Act No. 16 of 2021 is
very well maintainable.

42. Not only this, arising out of same
dispute of same market duly owned by the
family members of the respondent-plaintiff,
the matter went up to Apex Court in Civil
Appeal Nos. 1082-2083 of 2017 (Neena
Jain & Ors. Vs. State of U.P. & Anr.) and
during the pendency the said case, new Act
No.
16
of
2021
was
framed
and
implemented. Hence, Apex court has closed
the proceedings of the said case with the
observation that new Act, i.e. Act No. 16 of
2021 shall govern the revision of rent to
existing tenancies. Relevant paragraphs of
the said judgment is quoted hereinbelow:

"The
provisions of
the Act
aforesaid apply the principle of revision of
rent to existing holder tenancies also and
thus, there is no doubt about it. Insofar as
the claim of any arrears as submitted by
learned counsel for the appellants is
concerned, that will also have to be dealt
with under the provisions of the new Act
and thus, even on that aspect there appears
to be no apprehension.

We may notice that in these batch
of appeals there are some cases where the
suit filed by the landlords were dismissed
under Order VII Rule 11 of the Code of
Civil Procedure, 1908. The revision filed
against the same were also dismissed by
the High Court predicated on the rationale
of the impugned order. It is thus, the
submission of learned counsels in these
matters that these orders rejecting the
plaint would have to be recalled and the
suit remitted for fresh consideration in view
of the new law as discussed aforesaid.

We accordingly set aside the
order(s) passed in revision and by the trial
Court rejecting the suits under Order VII
Rule 11, CPC and restore the suits for reconsideration on the basis of the new law
and the order passed by us today."

43. Apex Court while passing the
order dated 23.08.2021 dealing with many
civil appeals, out of which one Civil
Appeal bearing no. 1089/2017 was filed by
the family members of the respondentplaintiff in relation to similarly situated
shop in the same market. In those matters,
suit filed by the landlords were dismissed
under Order VII Rule 11 CPC by the trial
Court and revision was also dismissed by
the High Court. Ultimately, the Apex Court
allowed the Civil Appeals setting aside the
order of trial Court as well as of the High
Court and remanded the matter to trial
Court to decide the same on the basis of
new Act, i.e. Act No. 16 of 2021.

44. Therefore, from the perusal of
Section 4(2) and 4(3) of Act No. 16 of 2021
as well as finding given by the Apex Court
in the matter of Neena Jain & Ors(Supra),
there is no dispute that proceedings under
the new Act is maintainable.

45. This is also case of petitionerdefendant is that without any exercise and
application of mind the rent proposed by
the respondent-plaintiff is accepted.

46. It is argued by learned counsel for
the respondent-plaintiff that in paragraphs
4, 5, 6 and 7 of the rent application, there is
averment about the fixation of rent about
the shops in the same market, i.e.
Labhchand Market, Rajaki Mandi, Agra,
which is not denied in the objection filed
by the petitioner-defendant.
8 All. Jag Mohan Agarwal Vs. Smt. Kanchan Kumari Jain
289

47. I have perused the rent application
and also objection of petitioner-defendant.
Certainly the facts so mentioned in
paragraphs 4, 5, 6 and 7 of the rent
application dated 20.01.2022 it has not
been denied that it is not in the same
market, i.e. Labhchand Market, Rajaki
Mandi, Agra. Paragraphs 4, 5, 6 and 7 of
the rent application are being quoted
hereinbelow:-

"4. That the shop in question is
situated in most prominent important
market of City of Agra. The valuation of 4
shops in the area in question (in the same
Labh Chand Market) were assessed by
ADM(FR), Agra in respect of Shops No.
29/296A/31, 29/296A/37, 29/296/11 and
29/296/14 on various dates.

The copies of all orders are also
being filed as Annexure B, C, D & E to
Affidavit.

5. That as per above aluation
done by ADM(FR), Agra for four shops
between 2004 and 2012 the current value of
the shops in Labh Chand Market in 2021
comes to approx. Rs. 1,00,000/- per sqr.
Feet Annual rent Value( At 10% of Market
Value) comes to Rs. 10,000/- per Sqr. Feet
and the monthly rental at Rs. 833/- per Sqr.
Feet as per table below:-

Shop
No. Old
Shop
No.
New
Area
in Sqr.
Feet
(Appr
ox)
Date
of
Valuati
on
Valued
at Rs.
(in
Lakh)

Valu
e (in
Rs.
Lak
h) in
202
1 @
7%
Ann
ual
incr
eme
nt
Valu
e in
Rs.
Per
sqr.
Feet
in
202
1
29/296
A/31
29/296/
A/7
134 in
GF
and
268 in
17/05/
2012
165
309.
23
1,15
,384
/-
Basem
ent=
134+1
34=
268
29/296
A/37
26/296/
B/5-6
340
GF+31
0
basem
ent=34
0+155
=495
05/12/
2007
184
488 98,5
86/-
29/296/
11

71.22 14/05/
2004
19.50 63.8
7
89,9
58/-
29/296/
14

79.50
30/04/
2005
21.45
65.5
4
82,4
40/-

6. That even in the market one
tenant namely Shri Virendra Kumar
Sharma, with Shop No. 29/296/24 having
area of 20 Sq. feet is paying rent to his
Landlord Shrimati Kanchan Kumari Jain
Wife of Late Shri Milap Chandra Jain at
the rat of Rs. 22,000/- per month. The
copy of lease agreement and his payment
receipts are being filed as Annexure F, G
& H to the Affidavit.

7.
That
recently
the
Rent
Authority by its order dated 22/12/2021 has
revised the rent of the Shop No. 29/296A/29
(New No. 29/296A/5) Labh Chand Market,
Raja Ki Mandi, Agra as Rs. 750/- per Sq.
Feet. The Copy of order dated 22/12/2021
is being filed as Annexure I to the
Affidavit."

48. Petitioner-defendant has replied
paragraph 4, 5, 6 and 7 of the rent
application dated 20.01.2022 filed by
respondent-plaintiff by filing objection
dated 18.05.2022. Relevant paragraphs of
objection filed by petitioner-defendant are
being quoted hereinbelow:-

"3. That para No.