# Mohammad Aamir v. Dist. Judge Lucknow & Ors - **Citation:** (2021) 7 ILRA 117 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-07-16 - **Case number:** Rent Control No. 12338 of 2019 - **Bench:** Mrs. Sangeeta Chandra - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-aamir-v-dist-judge-lucknow-ors-47147 - **Pages:** 5 ## Headnote Mohammad Ehtesham Khan, Neeraj Chaurasiya Even if the issue of jurisdiction not raised-and no objection was taken before him to considered the question-always court's duty to decide question of jurisdiction and limitation suo moto-impugned orders set aside. W.P. partly allowed.(E-7) List of Cases cited: ## Text 7 All. Mohammad Aamir Vs. Dist. Judge Lucknow & Ors. 117 correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.(emphasis supplied)" 24. This Court does not find any factual legal infirmity in the order impugned.The writ petition is dismissed. Petitioners are directed to pay all the arrears of rent since 01.07.2013 alongwith house tax and water tax at the rate of 10% to the respondent no.2 within two months from today and simple interest at the rate of 9% per annum thereon, and to give vacant peaceful possession of the shop in question to the landlord/ respondent no.2 within the same period. ---------- (2021)07ILR A117 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 16.07.2021 BEFORE THE HON'BLE MRS. SANGEETA CHANDRA, J. Rent Control No. 12338 of 2019 Mohammad Aamir ...Petitioner Versus Dist. Judge Lucknow & Ors. ...Respondents Counsel for the Petitioner: Khaleeq Ahmad Khan, Mohammad Akram, Mohd. Mubali Gussalam Counsel for the Respondents: Mohammad Ehtesham Khan, Neeraj Chaurasiya Even if the issue of jurisdiction not raised-and no objection was taken before him to considered the question-always court's duty to decide question of jurisdiction and limitation suo moto-impugned orders set aside. W.P. partly allowed.(E-7) List of Cases cited: 1. Harshad Chiman Lal Modi Vs DLF Universal Ltd. & anr. (2005) 7 SCC 791 2.Bahrein Petroleum Co. Ltd. Vs P.J. Pappu, AIR 1966 SC 634 3. Kiran Singh Vs Chaman Paswan , AIR 1954 SC 340 4. United Bank of India Vs Achintyakumar Lihiri, 2007(25) LCD 176 5. Manoj Kumar Gupta Vs Sunil Kumar Gupta, 2019 (1) JCLR 832(All) 6. M/s Bharat Petroleum Corporation Limited & anr. Vs Rent Control and Eviction Officer/ City Magistrate, Allahabad & ors., 2015 (110) ALR 177 (Delivered by Hon'ble Mrs. Sangeeta Chandra, J.) 1. Heard Sri Mohd. Mubalig-UsSalam, learned counsel for the petitioner and Sri Mohammad Ehtesham Khan, learned counsel appearing for respondent/landlord. 2. It is the case of the petitioner as argued by his Counsel that Sri Riyaz 118 INDIAN LAW REPORTS ALLAHABAD SERIES Ahmad, Sri Ayaz Ahmad, Sri Ahraz Ahmad and Sri Imran Ahmad, all four sons of Late Aziz Ahmad were the landlords of the property in question i.e. House no. 429/40 ad-measuring 3256 Sq. feet situated in Mohalla Muazzam Nagar, Pargana, Tehsil and District - Lucknow by virtue of registered sale-deed dated 23.04.2001 executed by one Mangli Prasad. On 02.02.2006 Sri Ahraz Ahmad, son of Late Aziz Ahmad had let out the two shuttered shop situated in aforesaid building no. 429/40 to the petitioner on rent at the rate of Rs.2000/- per month with the condition that the rate rent will keep on increasing at the rate of 5% on the expiration of every three years. Opposite party nos. 3 and 4 are the daughters of late Aziz Ahmad and after the death of Late Aziz Ahmad, Sri Ahraj Ahmad orally informed the petitioner that opposite parties no. 3 and 4 had been given the ownership of the two shops in question on the basis of family settlement that had taken place after the death of their father Aziz Ahmad on the basis of his Will to carry out his last wishes. The petitioner bonafidely believed the oral statement of Ahraj Ahmad and starting giving rent to respondent no.3 an 4 at the rate of Rs.2400/- per month. 3. The opposite parties no. 3 and 4 filed an application under Section 21(1) (a) of the U.P. Act no.13 of 1972 before the Prescribed Authority, saying that they were living in a rent ed accommodation at Kanpur and they wished to start their business in the shop in question at Lucknow. The petitioner filed his objection to the said application wherein he stated clearly that Aziz Ahmad was not the owner of the property in question . He could not have Willed the same to opposite parties no. 3 and 4. Ahraj Ahmad with his three brothers had purchased the property through registered sale-deed and the shop in question had been let out by Sri Ahraz Ahmad,who was the owner and landlord of the shop in question. It was also stated that the petitioner was running a General Merchant business in the two shops in question for the past 12 years which was the only source of income and it would be difficult for him to seek alternative accommodation in neighborhood. 4. The Prescribed Authority in the order dated 19.11.2018 considered three points i.e. (a) whether there was relationship of landlord and tenant between the parties (b) whether the applicants have a bonafide need of the shops in question (c) the balance of convenience and relative hardship of the parties to the dispute; and passed an order in favour of the applicants saying that petitioner had himself admitted that he was paying rent to opposite parties no.3 and 4 on the request of the original owner Ahraj Ahmad. With regard to bonafide need, it was found by the Prescribed Authority that indeeds the applicants were living in rented accommodation at Kanpur and with regard to the balance of convenience and relative hardship, it was observed that there was no statement of the tenant that he tried to look for alternative accommodation and could not find the same in the neighborhood. It was observed that failure to look for alternative accommodation in itself disentitled the tenant for any sympathetic consideration. 5. After the application was allowed, the petitioner filed an Appeal before District Judge which was also decided against him on 29.03.2019 , hence this writ petition. 6. It has been argued by learned counsel for the petitioner that in the Appeal , petitioner had taken a specific ground that rent of the shop in question was Rs. 2400/- per month i.e. beyond monitory limit of 7 All. Mohammad Aamir Vs. Dist. Judge Lucknow & Ors. 119 Rs.2000/- per month as given in Section 2(1) (g) of the Act 13 of 1972 hence the Prescribed Authority had no jurisdiction to hear the matter of release. 7. Learned counsel for the petitioner has read out section 2(1) which enumerates exemptions from the operation of the Act and sub-section (g) thereof says that any building whose monthly rent exceeds Rs.2000/- would be outside the operation of the Act. Despite this specific plea being taken in Appeal, the appellate court has not considered the same and passed the impugned order .Learned counsel for the petitioner has placed reliance on the judgments of this Court as well as the Hon'ble the Supreme Court to buttress his arguments. 8. Learned counsel for the petitioner has cited a judgment of Hon'ble Supreme Court in the case of Harshad Chiman Lal Modi Vs. DLF Universal Ltd. and another (2005) 7 SCC 791 wherein learned counsel has placed reliance in paragraph 30, 32, 33 and 37. The Supreme Court had observed that the jurisdiction of a court may be classified into several categories. The important categories are (I) territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject matter. So far as first two are concerned, it is incumbent upon the parties to raise objection at the very first opportunity, if they do not do so, they cannot take objection at a subsequent stage. The jurisdiction as to subject matter however, is totally distinct and stands on different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by the Statute, Charter or Commission, it cannot take up the cause or matter. The order passed by by a court having no jurisdiction is a nullity. 9. Learned counsel for the petitioner has pointed out the observations made by Hon'ble Supreme Court referring to its earlier judgments in the cases of Bahrein Petroleum Co. Limited Vs. P.J. Pappu, AIR 1966 SC 634 and Kiran Singh Vs. Chaman Paswan , AIR 1954 SC 340 . The Supreme Court in sum and substance has observed that the decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution, and even in collateral proceedings. 10. Learned counsel has placed reliance upon the judgment of a Coordinate Bench of this Court in the case of United Bank of India Vs. Achintyakumar Lihiri, 2007(25) LCD 176. (paragraphs 18,19,20); wherein this Court had considered the order passed under U.P. Act 13 of 1972 and it observed that under the Act an action can be initiated before the authority only when the subject matter of the proceeding is within the jurisdiction of the Authority. It was a case where the rent of the shop in question was Rs. 8000/- per month initially which was increased from time to time and was Rs.15000/- per month, at the time of application filed before the Prescribed Authority under the Act. The Court observed in paragraphs no.18,19,20 that there was an inherent lack of jurisdiction in the Courts below then any waiver or acquiescence or not raising of objection at the first instance by the petitioner, even if accepted, would not bring the building under the purview of the Act nor the Courts 120 INDIAN LAW REPORTS ALLAHABAD SERIES could adjudicate the said dispute as there was no jurisdiction at all with them to do so. 11. Learned counsel for the petitioner has also placed reliance upon the judgment rendered by a Coordinate Bench of this Court in Manoj Kumar Gupta Vs. Sunil Kumar Gupta, 2019 (1) JCLR 832(All) (paras 6 and 7); where the Court was dealing with a Rent Control matter and held that that once it is admitted by the landlord that the rent of the premises was Rs.2000/- per month plus water tax, the rent of the building would definitely be more than the monitory limit as given under clause (g) of sub-section(1) of Section 2 of the Act, consequently the Prescribed Authority has no jurisdiction to deal with the application. 12. Learned counsel for the petitioner has placed reliance upon another judgment rendered by a Coordinate Bench in case of M/s Bharat Petroleum Corporation Limited and another Vs. Rent Control and Eviction Officer/ City Magistrate, Allahabad and others, 2015 (110) ALR 177; where considering Section 2(1) (g) of the Act which provides that the provisions of the Act would not be applicable to a building whose monthly rent exceeds Rs.2000/-. This Court observed that the Rent Control and Eviction Officer had exceeded his jurisdiction in entertaining the application. 13. Sri M.E. Khan counsel appearing on behalf of opposite parties no.3 and 4 has very fairly stated before this Court that the question of jurisdiction was raised in the appeal by the petitioner but learned appellate court has failed to consider the ground of challenge in the impugned order. 14. This Court has carefully perused the order passed by Prescribed Authority and also the judgment rendered in appeal dated 29.03.2019 and finds from the perusal of both the orders that none of the courts below had considered the question of jurisdiction. It was the duty of the Prescribed Authority even if the issue of jurisdiction was not raised and no objection was taken before him, to have considered the question of jurisdiction as it is always the duty of the court below/ authority concerned to decide the question of jurisdiction and that of limitation suo moto even if it is not raised by any of the parties to the dispute. The Prescribed Authority had passed the order assuming the jurisdiction as no dispute was raised regarding the same before him. Learned appellate court, however, failed to exercise its jurisdiction to correct the errors of law and fact even where such ground was taken in appeal and was argued before it, it was not considered in right perspective, when the appellate court is court of both law and fact. In this case question of law was regarding jurisdiction and question of fact that was arising for determination was whether indeed premises in question was let out on rent beyond Rs.2000/- per month. 15. The Judgment and order dated 29.03.2019 passed by learned District Judge in Rent Appeal No. 35 of 2018 is set aside and the matter is remanded to the appellate court to pass a fresh order in the light of observations made herein above. 16. Since the pleadings have been exchanged between the parties before the Prescribed Authority and all the pleadings before appellate court have already been completed, the only question that the Appellate Court would now be considereing would be with regard to the rate of rent and it should decide the matter expeditiously as possible, say, within a 7 All. Jawahar & Ors. Vs. D.D.C. Faizabad & Ors. 121 period of six months from the date a copy of ordered produced before it. 17. The writ petition is partly allowed. 18. Since both the parties are represented before this Court, this Court feels it appropriate to fix a date before learned Appellate Court for appeal to be taken up. Let the Appeal be taken up for hearing before the District Judge, Lucknow on 28.07.2021. ---------- (2021)07ILR A121 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 12.07.2021 BEFORE THE HON'BLE RAJNISH KUMAR, J. Consolidation No. 117 of 2005 Jawahar & Ors. ...Petitioners Versus D.D.C. Faizabad & Ors. ...Respondents Counsel for the Petitioners: Radhey Shyam Tiwari, Vinod Kumar Singh Counsel for the Respondents: C.S.C., M.A. Siddiqui Consolidation Proceedings - U.P. Zamindari Abolition and Land Reforms Act, 1950: Section 171- In case the name of any person has been left to be recorded by mistake or for some other reasons it cannot be said that the right of a male lineal descendant accrued to him by operation of law has been extinguished. (Para 16). During verification of records at the time of consolidation proceedings, it was found that the petitioners are also entitled for half of the shares in the land in dispute therefore an objection was filed. (Para 17) Writ Petition Allowed. (E-8) List of Cases cited: 1. Beni Prasad & ors. Vs Deputy Director of Consolidation, Allahabad & ors. 1986 All. 999 I(followed) 2. Shri Ram & ors. Vs Deputy Director of Consolidation, Allahabad & ors. 2011 (29) LCD 764 (followed) 3. Shahid Khan & ors. Vs Deputy Director of Consolidation, Gautam Buddha Nagar & ors. 2011 (113) RD 723 (followed) 4. Bhagwat Sharan (Dead through LRs.) Vs Purshottam & ors. 2020 (6) SCC 387 (distinguished) (Delivered by Hon'ble Rajnish Kumar, J.) 1. Heard, Sri R.R. Upadhyaya, learned counsel for the petitioner and Sri Aftab Ahmad, Advocate holding brief of Sri M.A.Siddiqui, learned counsel for the respondents no. 2 and 3. Notice on behalf of respondent no.1 has been accepted by learned Chief Standing Counsel. 2. The instant writ petition has been filed challenging the order dated 27.11.2004 passed by the Deputy Director of Consolidation, Faizabad (respondent no.1) in Revision No.986 / 165. 3. The brief facts, for adjudication of the present case, are that the land in dispute relating to Khata No.169 situated in Village- Chandipur Nagahra was recorded in the name of Tulsi Ram son of Ram Sanehi, Khata No.87 situated in Bansawa was recorded in the name of Ram Sanehi