Ram Narayan
Sharma Vs. Shakuntala Gaur [2002] Insc 231 (29 April 2002)
D.P.
Mohhapatra & Brijesh Kumar Brijesh Kumar, J.
Leave
granted.
The
order, dismissing a writ petition, preferred by the present appellant in the
High Court, has been impugned by means of the appeal in hand. The VIth
Additional District Judge, Muzaffarnagar passed an order dated 30.10.1999 in
revision, setting aside the order of allotment in favour of the appellant and
releasing the accommodation in question, in favour of the respondent-landlady
on the ground of her bona fide requirement. A learned Single Judge of Allahabad
High Court by order dated 16.11.1999 upheld the order passed in revision..
The
dispute as evident, relates to the letting and release of the accommodation in
question governed by the provisions of Uttar Pradesh Urban Buildings
(Regulation of Letting, Rent ;and Eviction) Act 1972, hereinafter to be
referred to as `the Act'. It appears that one Bankey Lal was the owner and
landlord of House No.179/18, Sanjay Marg, South Bhopa Road Muzaffar Nagar. The
ground floor of the house was in the tenancy of one Trilok Chand who vacated
the premises and the appellant moved an application for its allotment under
Section 16 (1) (a) of the Act. This petition was registered as Suit No.63/89. Bankey
Lal, the landlord of the house died during pendency of the proceeding for
allotment. The appellant moved for substitution of the heirs of late Bankey Lal
and brought on record his two sons namely Ravi Mohan Bhatnagar and Mohan Bhatnagar.
They did not turn up to contest the application for allotment though served. By
order dated 3.8.1990 the Rent Control and Eviction Officer allotted the
premises to the appellant who also entered into possession of the same. Later,
however, Ravi Mohan Bhatnagar, son of late Bankey Lal who was brought on record
as one of his heir, filed a revision No.19 of 1990, challenging the order of
allotment on the ground that late Shri Bankey Lal had also left behind another
son Shri Hari Mohan and a daughter Smt. Swaraj as his heirs but they had no
notice of the proceedings. Needless to mention that the revisionist, namely, Ravi
Bhatnagar, though served had not taken any such or other objection before
allotment of the accommodation to the appellant.
Later
on, however, Hari Mohan and Mohan Bhatnagar namely, the other two sons of late Shri
Bankey Lal, as a consequence of settlement, in arbitration proceedings,
undisputedly became owners of the house in question. That is to say Ravi Mohan Bhatnagar
was now left with no interest in the property at all so as to be entitled to
prosecute revision filed by him against allotment order. His brothers also
never at any stage showed any interest against allotment in favour of the
appellant. A further development which needs to be noted is that Hari Mohan Bhatnagar
and Mohan Bhatnagar transferred the property on 15.9.1994 in favour of Smt. Shakuntala
Gaur, the respondent who was already a tenant of the first and second floors of
the house. She moved an application no.83A in revision RCA No.19 of 1990 for
being impleaded as revisionist No.2 along with Ravi Mohan Bhatnagar. Ravi Mohan
Bhatnagar on the other hand moved an application and rightly, not pressing his
RCA No.19 of 1990.
The
Addl. District Judge, however by order dated 15.1.1996 allowed the RCA No.19 of
1990 filed by Ravi Mohan Bhatnagar and set aside the order of allotment dated
3.8.1990 which was passed in favour of the appellant, on the ground that Hari
Mohan Bhatnagar and Smt. Swaraj, other two heirs of Bankey Lal had no notice of
the proceedings of allotment. The Addl. District Judge also seems to have
allowed the application moved by the respondent for being impleaded as
revisionist No.2 but no order appear to have been passed on the application of Hari
Mohan Bhatnagar not pressing the revision. The case was remanded to the Rent
Control and Eviction Officer to dispose of the same on merits.
A writ
petition preferred against the order dated 15.1.1996, it is informed had been
rejected.
During
the proceedings before the Rent Control and Eviction Officer, after the remand,
the respondent moved an application dated 15.2.1996 for release of the
accommodation in her favour saying that she bona fide required the same. The
case was decided by order dated 27.3.1997 passed by RCEO in Suit No.63 of 1989,
recording a finding that the respondent did not have bona fide need of the
accommodation and dismissed the Revision and her application for release moved
in Suit No.63 of 1989. As a consequence thereof an order of allotment was again
passed on 31.3.1997 by the Rent Control and Eviction Officer.
The
respondent preferred two revisions No.4 of 1997 and 5 of 1997 in the Court of
the Addl. District Judge, impugning the orders dated 27.3.1997 and 31.3.1997.
The learned Addl. District Judge allowed the revisions, setting aside the order
of allotment dated 31.3.1997 passed in favour of the appellant and released the
accommodation in favour of the Respondent. The writ petition preferred against
the order passed in the two revisions mentioned above was dismissed by order
dated 16.11.1999 which is under challenge in this appeal.
Learned
counsel for the appellant apart from raising other grounds has urged that scope
of revision under Section 18 of the Act is limited and reappraisal of evidence
for recording findings of fact is not permissible. Hence, the order of revisional
court suffers from infirmity of exceeding its jurisdiction in exercise of its revisional
power and the High Court erred in not taking note of the same and further
submits that the application for release of the accommodation moved by the
respondent could not be entertained.
Before
dealing with questions raised, it may be better to peruse the provisions as
contained under Sections 16 and 18 of the Act which read as follows:
"16.
Allotment and release of vacant building.
(1)
Subject to the provisions of the 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);
or (b) release the whole or any part of such building, or any land appurtenant
thereto, in favour of the landlord (to be called a release order):
[Provided
that in the case of a vacancy referred to in sub-section (4) of Section 12, the
District Magistrate shall given an opportunity to the landlord or the tenant,
as the case may be, of showing that the said section is not attracted to his
case before making an order under clause (a)].
2. No
release order under clause (b) of sub- section (1) shall be made unless the
District Magistrate is satisfied that the building or any part thereof or any
land appurtenant thereto is bona fide required, either in its existing form or
after demolition and new construction, by the landlord for occupation by
himself or any member of his family, or any person for whose benefit it is held
by him, either for residential purpose or for purposes of any profession,
trade, calling or where the landlord is the trustee of a public charitable
trust, for the objects of the trust, or that the building or any part thereof
is in a dilapidated condition and is required for purposes of demolition, and
new construction, or that any land appurtenant to it is required by him for
constructing one or more new buildings or for dividing it into several plots
with a view to the sale thereof for purposes of construction of new buildings:
---------------
--------------- (a) --------------- (b) in the case of business purposes, the
names of proprietors or partners of the business;
(c) the
date, which shall not be earlier than seven days after the date of the order,
by which the landlord shall deliver possession to the allottee;
(d) such
other particulars as may be prescribed.
----------
---------- ---------- ---------- ---------- ----------- (7) Every order under
this section section, shall subject to any order made under Section 18, be
final.
(8)
The allottee shall, subject to theh provisions of sub-section (5) and (9) of
Section 18, be deemed to become tenant of the building from the date of
allotment or where he is unable to obtain possession by reasons of a stay order
or of any other person having occupied or continued to occupy the building,
from the date on which he obtain possession.
18.
"Appeal against order of allotment or release. (1) No appeal shall lie
from any order under Section 16 or Section 19, whether made before or after the
commencement of this section, but any person aggrieved by a final order under
any of the said sections may within fifteen days from the date of such order
prefer a revision to the District Judge on any one or more of the following
grounds, namely, :- (a) that the District Magistrate has exercised a
jurisdiction not vested in him by law;
(b) that
the District Magistrate has acted in exercise of his jurisdiction illegally or
with material irregularity.
(2)
The revising authority may confirm or rescind the final order made under sub-
section (1) or may remand the case to the District Magistrate for rehearing and
pending the revision may stay the operation of such order on such terms, if
any, as it thinks fit.
Explanation.-
The power to rescind the final order under this sub-section shall not include
the power to pass an allotment order or to direct the passing of an allotment
order in favour of a person different from the allottee mentioned in the order
under revision.
(3)
Where an order under Section 16 or Section 19 is rescinded, the District
Magistrate shall on an application being made to him on that behalf, place the
parties back in the possession which they would have occupied but for such
order or such part thereof as has been rescinded, and may be that purpose use
or cause to be used such force as may be necessary." From a perusal of the
provisions quoted above namely, Sections 16 and 18 of the Act, it is clear that
a person is entitled to make an application under sub-section (1) (a) of
Section 16 for allotment in respect of a building which has or is about to fall
vacant. Under clause (1) (b) the landlord is entitled to move an application
for release of the accommodation Sub- s.(7) of Section 16 provides that every
order passed under Section16 shall be final subject to any order passed under
Section 18 of the Act. The order passed under Section 16 can be interfered with
in exercise of revisional jurisdiction under Section 18 of the Act in cases
where the District Magistrate had exercised jurisdiction not vested or has
failed to exercise the jurisdiction or has exercised it illegally or with
irregularity.
Under
sub-s.(2) of Section 18, the revisional authority is entitled to confirm or
rescind or remand the case to the District Magistrate for re-hearing.
The revisional
court while dealing with Revisions No. 4 & 5 of 1999 held that the position
of the appellant was that of a `prospective allottee' vis-a-vis application for
release moved by the respondent-landlady. The revisional court placing reliance
upon certain decisions of the High Court on the point, held that a prospective allottee
has no right to file objection or to be heard against an application moved by
the landlord for release and that the release application has to be heard and
disposed of first. Therefore, the revisional court further held that the RC
& EO erred in considering the application of the appellant for allotment
and in not taking into account the affidavit filed by the landlady making
averments regarding her bona fide need for the accommodation. So far the
question of scope of the power of the revisional court under Section 18 of the
Act is concerned, the revisional court relying upon the decisions reported in
1981 ARC 34- Lokesh Kumar Dwivedi versus IInd Addl. Distirct Judge ,Lucknow
1994 ALR (2) 107- Mahkar Singh versus Vith Addl. District Judge, Meerut and
1996 (1) ARC 505 Taukhid Khan versus Special Judge, Nainital held that in
appropriate cases the revisional court has power to pass an order of release of
the accommodation in favour of the landlord instead of remanding the matter.
Thus holding that the petitioner being in a position of prospective allottee
had no right to be heard in the matter of release of the accommodation in favour
of the landlord. On consideration of the affidavit of the landlady the revisional
court found that her requirement was bona fide thus passed an order of release
of accommodation in her favour.
In the
writ petition the High Court found the appellant was rightly treated as a
prospective allottee and the need of the landlady having been found to be bona
fide by the revisional court , it committed no error in releasing the
accommodation in her favour. So far the legal position is concerned, we feel
that there is hardly any doubt that a prospective allottee shall have no right
to oppose an application for release moved by the landlord. The need of the
landlord is bona fide or not is a matter for satisfaction of the District
Magistrate and on being so satisfied, an order of release can be passed. The
Release application is to be disposed of first before passing an order on the
application for allotment.
In the
present case we find that the position is very peculiar which has not been
properly appreciated in correct perspective. Undisputedly the accommodation in
question had fallen vacant and the appellant had applied for its allotment but
in the meantime landlord Bankey Lal died. The appellant brought on record two
sons of late Bankey Lal as his heirs and legal representatives viz. Ravi Mohan Bhatnagar
and Mohan Bhatnagar but they filed no objection and order of allotment was
passed on 3.8.1990 in Suit No.63/89. The appellant also got possession of the
accommodation. Later however same Ravi Mohan Bhatnagar who was substituted and
had chosen not to file any objection though served, preferred a revisionon the
ground that Hari Mohan Bhatnagar and Smt. Swaraj, the other two heirs of Bankey
Lal had no notice although they had not raised any such objection. Later Hari
Mohan Bhatnagar and Mohan Bhatnagar became owners and landlord of the house on
March 20, 1994. Even after becoming the landlord of the accommodation, Hari
Mohan Bhatnagar and Mohan Bhatnagar raised no objection regarding allotment and
tenancy of the appellant. Later they sold the property in favour of the
respondent on 15.9.1994. Ravi Mohan Bhatnagar moved application for not
pressing Revision No.19 of 1990 filed by him against allotment in favour of the
appellant. The position that emerges is that respondent was not the landlady
when the accommodation was allotted to the appellant in 1990 nor on March 20,
1994 when Hari Mohan Bhatnagar and Mohan Bhatnagar became landlords thus on Ravi
Mohan Bhatnagar's interest in property as an heir of Bankey Lal coming to an
end, the revision No.19 of 1990 filed by Ravi Mohan Bhatnagar even if it was
pending, it was an inconsequential and infructuous petition having no life so
as to be prosecuted by him. The respondent had purchased the house from Hari
Mohan and Mohan Bhatnagar and not from Ravi Mohan Bhatnagar who obviously was
left with no right or interest in the property. She moved an application for release
thereafter on 15.2.96. It may be particularly noted that the order of allotment
passed on 3.8.1990 was in operation on March 20, 1994 when Hari Mohan Bhatnagar
and Mohan Bhatnagar became owner of the accommodation. Between Bankey Lal and
his heirs including Ravi Mohan Bhatnagar and the landlady- Respondent there
stood her vendors having ownership rights of their own which they transferred
to her. She had no connection with Bankey Lal or his heirs so as to be entitled
for moving an application under Section 16 (1)(b) for release of accommodation
already allotted to the appellant before her predecessor in interest had
acquired rights in property exclusively. The appellant therefore could not be
treated as a prospective allottee nor the respondent as owner subsequent to
allotment could take up Revision filed by Ravi Mohan Bhatnagar whose interest
as an heir of Bankey Lal had ceased on the property vesting in Hari Mohan and
Mohan Bhatnagar by virtue of arbitration.
In
such a situation as indicated above the landlady namely the respondent in case
had any bona fide requirement of the accommodation could only move for eviction
of the appellant under the provisions of Section 21 of the Act.
Section
21 reads as under:
"21.
Proceedings for release of building under occupation of tenant. (1) The
prescribed authority may, on an application of the landlord in that behalf,
order the eviction of a tenant from the building under tenancy or any specified
part thereof if it is satisfied that any of the following grounds exists namely
(a) that the building is bona fide required either in its existing form or
after demolition and new construction by the landlord for occupation by himself
or any member of his family, or any person for whose benefit it is held by him,
either for residential purposes or for purposes of any profession, trade or
calling, or where the landlord is the trustee of a public charitable trust, for
the objects of the trust;
(b) that
the building is in a dilapidated condition and is required for purposes of
demolition and new construction:
Provided
that where the building was in the occupation of a tenant since before its
purchase by the landlord, such purchase being made after the commencement of
this Act, no application shall be entertained on the grounds, mentioned in
clause (a) unless a period of three years has elapsed since the date of such
purchase and the landlord has given a notice in that behalf to the tenant not
less than six months before such application, and such notice may be given even
before the expiration of the aforesaid period of three years:
."
Perhaps due to the hurdle in the way of the landlady for moving an application
for eviction under Section 21 (1)(a) for period of three years by virtue of
proviso, she tried to find a short cut to be impleaded as one of the
revisionists in RCA No.19 of 1990 in which the Respondent Ravi Mohan Bhatnagar
was not left with any kind of interest nor even semblance of any right to
challenge the allotment.
In the
facts and circumstances indicated abovce the Revisional Court and the High
Court both erred in considering the appellant as a "prospective allottee".
His position was more akin to an allottee in possession. The only course open
to the Respondent was to move under Section 21 (1)(a) of the Act for his eviction.
The
release application under Section 16 (1) (b) of the Act moved by the Respondent
was misconceived. The order passed on the infructuous proceedings namely
Revision No.19/90 would be inconsequential and shall not enure any benefit
either to Ravi Mohan Bhatnagar who had filed the revision nor to the respondent
who moved application for impleadment as a revisionist. Initially also Ravi
Mohan Bhatnagar had no justifiable reason to file the revision once having
failed to file objections to the allotment application in the year 1990 more
particularly on the ground that notice was not served upon some other heirs of
late Bankey Lal.
Whatever
right, if at all he had to file the revision as one of the heirs of Bankey Lal,
he had lost the same after the property came to be owned by Hari Mohan Bhatnagar
and Mohan Bhatnagar on March 20, 1994 by virtue of arbitration award in their favour.
So far respondent is concerned, her impleadment as one of the revisionists
rightly or wrongly would also be inconsequential since she had purchased the
property from Hari ohan and Mohan Bhatnagar as the owners and predecessor in
interest in the property and not from heirs of late Bankey Lal.
It is
thus clear that there is no reason to treat the appellant as prospective allottee.
The bona fide requirement of the respondent could not be considered in the infructuous
proceedings of the Revision 19/1990. The order passed in infructuous
proceedings is inconsequential and ineffective. She could not be permitted to
do something indirectly which was impermissible directly, in view of proviso to
sub-section (1) of Section 21 of the Act namely, she could not get the premises
vacated on the ground of her bona fide requirement within three years of
purchasing the property.
In the
result the appeal is allowed and the order of the High Court as well as of the revisional
court are set aside and that of the Rent Control & Eviction Officer is
restored. In case the appellant has been dispossessed from the premises in
pursuance of the orders passed by the revisional court or the High Court, the
Rent Control and Eviction Officer will take steps to restore possession of the
premises to him. The appellant on getting possession of the premises will pay
to the respondent-landlady arrears of rent for the period he was in occupation
of the premises, within three months. It will however be open to the respondent
if so advised to move any appropriate application as may be permissible under
the law for eviction of appellant. There shall, however, be no order as to
costs.
---------------------J.
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