Ashok Kumar & Ors Vs. Additional
District Judge, Nainital & Ors [1981] INSC 9 (9 January 1981)
FAZALALI, SYED MURTAZA 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.
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]
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 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 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 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.
Back
