Full Judgment Text
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PETITIONER:
ASHOK KUMAR & ORS.
Vs.
RESPONDENT:
ADDITIONAL DISTRICT JUDGE, NAINITAL & ORS.
DATE OF JUDGMENT09/01/1981
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
BHAGWATI, P.N.
CITATION:
1981 AIR 771 1981 SCR (2) 504
1981 SCC (1) 427 1981 SCALE (1)50
ACT:
Uttar Pradesh Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972-Section 16(1) (a)-Scope of.
HEADNOTE:
The appellants were the landlords of a building in
which the tenant was running a hotel. They filed a suit for
the tenant’s eviction on the ground that he had defaulted in
the payment of rent. The suit was decreed. The landlord, in
anticipation of the premises falling vacant, filed an
application before the Rent Controller and Eviction Officer
under section 16 of the U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 for release of the
building in question.
In the meantime respondent No. 3 filed a petition
before the District Judge alleging that he was a partner in
the hotel business with the consent and permission of the
landlord and that the landlord be directed not to dispossess
him. This application was rejected on the ground that
respondent No. 3 was neither a party to the ejectment suit
nor was any objection filed by him during the pendency of
the suit alleging that he had a share in the business
carried out by the tenant.
After physical possession of the premises was delivered
to the appellant decree-holder respondent No. 3 filed a suit
against the appellant and the former tenant for setting
aside the ejectment decree. He claimed that it was he who
was the sole tenant and, that for this reason the decree
could not have been passed against the former tenant. The
suit was dismissed.
The appellant made an application before the Eviction
Officer that the premises be allotted to him. The Eviction
Officer rejected the objection raised by respondent No. 3
and released the property in favour of the appellant. The
Appellate Authority, however, allowed respondent No. 38
appeal holding that the application filed by the landlord
was not maintainable under section 16 of the Act as the
tenant had not been actually ejected when the application
for notifying the vacancy was made.
The appellant’s writ petition was dismissed by the High
Court on the ground that before notifying the vacancy the
Eviction Officer did not hear respondent No. 3.
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Allowing the appeal
^
HELD : The High Court was in error in dismissing the
appellant’s writ petition. The High Court does not appear to
have considered the history of the case and the various
proceedings leading to the eviction of the tenant and to the
fact that respondent No. 3 had no claim or right to the
property. Respondent No. 3 never came in possession of the
premises but tried to defeat or
505
delay the decree by various subterfuges and pretexts. At no
stage could he show that he was either a sub-tenant or a
partner of the tenant. There was, therefore, no question of
his being heard by the Eviction Officer after possession was
delivered to the landlord and the vacancy notified. If at
all, such a hearing would have been futile and would have
ultimately led to the same result. [508 E & D]
The Appellate Authority took a wrong view of the law in
allowing the respondent’s appeal. Under section 16(1) of the
Act it was not necessary that the application for notifying
the vacancy should be made only after the premises have
become actually vacant. Section 16(1) (a) so far as
relevant, provides that the District Magistrate may require
a landlord to let any building which is about to fall vacant
to any person specified in the order. Manifestly it is not
necessary that under section 16(1)(a) the premises must
actually become vacant before an application under it could
be filed before the District Magistrate. In the instant case
as the decree for ejectment was under contemplation it was
open to the appellant to move the District Magistrate for
notifying the vacancy under the section. [507 E-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1154 of
1974.
Appeal by Special Leave from the Judgment and Order
dated 16-11-1978 of the Allahabad High Court in Writ
Petition No. 1086/76.
R. K. Garg, Vijay K. Jain and R. K. Gupta for the
Appellants.
Bishamber Lal for Respondent No. 3.
The Judgment of the Court was delivered by
FAZAL ALI, J. This appeal by special leave is directed
against an Order dated November 16, 1978 of the High Court
of Allahabad dismissing the writ petition filed by the
appellants.
The facts of the case fall within a narrow compass and
may be summarised thus.
The premises in question which are situated in Nainital
were commonly known as ‘Waverly Quarters’ and properly
called as ‘Hotel Waldrof’. According to the appellants the
premises were rented out to one Keshar Singh on an annual
rent of Rs. 14,000 on November 17, 1953 and the allotment of
Hotel Waldrof to the tenant, Keshar Singh, was confirmed by
the Rent Controller sometime in the year 1954. Thereafter,
the tenant-Keshar Singh defaulted in the payment of rent
resulting in a suit filed by the appellants for his
eviction. This suit was filed on 9-4-72 for ejectment and
for recovery of arrears amounting to Rs. 26,743, due up to
June 4, 1971. On March 12, 1973 the tenant was asked to
furnish security for arrears which he failed to do and an
application by the tenant for extension of time for
furnishing security was also rejected by the
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506
District Judge on 31st March, 1973. On April 25, 1973, the
landlord-appellant in anticipation of the premises falling
vacant filed an application before the Rent Control and
Eviction Officer, Nainital (hereinafter referred to as the
‘Eviction Officer’) under s.16 of The Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and Eviction) Act,
1972 (U.P. Act No. 13 of 1972) (hereinafter referred to as
the ‘Act’) for release of the building in question. On this
application, the Eviction Officer directed the Inspector to
submit a report on the question as to whether or not the
premises had fallen vacant. Meanwhile as the tenant had not
deposited the rent as directed by the Court, nor furnished
the security his defence was struck off and the appellant’s
suit for eviction was decreed on 9-5-1973.
After the decree for ejectment was passed against the
tenant, Respondent No. 3, Harbans Singh, filed an
application on 11-5-1973 in the court of District Judge,
Kumaon, Nainital on the allegation that he was a partner of
Keshar Singh in the business of Hotel Waldrof with the
consent and permission of the landlord and had purchased the
moveables of the aforesaid Hotel from Keshar Singh. He
further prayed that the landlord-appellant be directed not
to dispossess him (Harbans Singh). This application was,
however, rejected by the District Judge on the ground that
Harbans Singh was neither a party to the ejectment suit nor
was any objection filed by him during the pendency of the
suit alleging that he had any share in the business. The
application of Harbans Singh was accordingly rejected by the
District Judge on 12-5-73.
Subsequently on 21-5-1973, the Rent Control Inspector
reported to the Eviction Officer that the building in suit
which was allotted to Keshar Singh in 1954 had fallen vacant
in pursuance of the decree for ejectment obtained by the
appellant. During the pendency of the suit, the original
tenant, Keshar Singh had been appointed a Receiver of Hotel
Waldrof but after the decree was passed, he delivered
physical possession of the Hotel to the appellant-decree
holder in the presence of witnesses. It appears that Harbans
Singh tried to resist the delivery of possession and abused
the Commissioner but to no avail.
Thus, having failed in his attempts, to resist the
delivery of possession to the appellant, Harbans Singh filed
a suit (No. 47 of 1973) in the court of District Judge
against the appellant and the former tenant, Keshar Singh,
for setting aside the ejectment decree passed in suit No. 27
of 1972 alleging that as he had become the sole tenant,
Keshar Singh ceased to be a tenant of the disputed property
and the decree was wrongly passed against Keshar Singh. He
also pleaded
507
that the suit being a collusive one, the decree should be
set aside. The suit filed by respondent No. 3 does not
appear to have been pursued and ultimately it stood
dismissed on 11-6-1975.
Sometime in July 1973 the appellant by means of an
application informed the Eviction Officer that the landlord
had been delivered possession of the Hotel and prayed that
since the premises had fallen vacant, the same may be
allotted to him. Respondent No. 3, however, on 8-11-1973
filed objections to the application of the landlord for
releasing the accommodation on the allegation that he had
filed a suit for setting aside the decree. The Rent Control
Inspector on being asked to report the exact position
submitted his report to the Eviction Officer who rejected
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the application filed by respondent No. 3 and by an order
dated 18-11-1974 released the property in favour of the
appellant with the exception of the outhouses which were in
possession of different tenants. Harbans Singh then filed an
appeal on 11-4-1974 before the appellate authority
challenging the order of the Eviction Officer. This appeal
was admittedly time-barred. The appeal was, however, allowed
by the appellate authority on the ground that the
application filed by the landlord was not maintainable under
s.16 of the Act as the tenant had not been actually ejected
when the application for notifying the vacancy was made.
There can be no doubt that the appellate authority took
a wrong view of law in allowing the appeal because under the
provisions of s.16(1) of the Act it was not necessary that
the application for notifying the vacancy should be made
only after the premises have become actually vacant. Section
16(1)(a) runs thus:
"16(1) Subject to the provisions of this Act, the
District Magistrate may by order-(a) require the
landlord to let any building which is or has fallen
vacant or is about to fall vacant, or a part of such
building but not appurtenant land alone, to any person
specified in the order (to be called an allotment
order)." (Emphasis supplied).
It is manifest that under s.16(1)(a), it is not
necessary that the premises must actually become vacant
before an application under s. 16 could be filed before the
District Magistrate. In the instant case, as a decree for
ejectment was under contemplation, it was open to the
appellant to have moved the District Magistrate for
notifying the vacancy under s.16(1) (a) of the Act.
We have already pointed out that the premises did fall
vacant subsequently and the delivery of possession was also
given to the landlord in pursuance of the decree of
ejectment passed by the civil court.
508
Respondent No. 3 appears to have made a futile attempt to
make confusion worse confounded by representing that the
premises were not vacant when he knew full well that the
delivery of possession was given to the landlord in his
presence and he had later filed a suit for setting aside the
decree which was dismissed. Thus, it appears from the record
that respondent No. 3, Harbans Singh, never came in
possession of the premises in question but tried to defeat
or delay the decree passed by the civil court in favour of
the appellant by various subterfuges and pretexts. However,
as the appellate authority had accepted the appeal filed by
respondent No. 3, the appellants were compelled to take the
matter to the High Court by way of a writ petition. The High
Court, however, dismissed the writ petition mainly on the
ground that before notifying the vacancy, the Eviction
Officer did not hear respondent No. 3. The High Court does
not appear to have considered the history of the case and
the various proceedings leading to the eviction of Keshar
Singh and to the fact that respondent No. 3 had absolutely
no claim or right to the property. At no stage could Harbans
Singh prove that either he was a sub-tenant or a partner of
Keshar Singh. His attempt to get the decree, passed in
favour of the appellant, set aside failed.
In these circumstances, therefore, there was no
question of his being heard by the Eviction Officer after
the possession was delivered to the landlord and the vacancy
was notified. If at all, such a hearing would have been
futile and would have ultimately led to the same result. In
these circumstances, we are clearly of the opinion that the
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High Court erred in law in dismissing the writ petition and
upholding the judgment of the District Judge remanding the
matter to the Eviction Officer. We, therefore, allow this
appeal, set aside the judgment of the High Court as also
that of the District Judge (the appellate authority) and
restore the order of the Eviction Officer releasing the
accommodation in favour of the appellant. The appellant will
be entitled to costs in this Court quantified at Rs. 2,000
(Rupees two thousand only).
P.B.R. Appeal allowed.
509