!'104

ASHOK KUMAR & ORS.

\'.

I ADDITIONAL DISTRICT JUDGE, NAINITAL & ORS.

January 9, 1981

[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.]

Uttar Prade3h Urban Buildings (Regulation of Lttting, Rent and Eviction) Act, 1972-Sectlon 16(1)(a)-Scope of.

The appellant. 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 !lad 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 Buildinas

(Regulation of Lelling, 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 permbsion 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 pend ency of the suit alleging' that he bad a share in the business carried out by !he tenant.

After physical JlO"'e"ion of the premises was delivered to the appellant decreeholder respondent No. 3 filed a suit against the appellant and the former tenant faii 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 dismi.!sed.

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. Th• Appellate Authority, however, allowed respondent No. 3 ·, appeal holding that"" the application filed by the landlord ,. .. not maintainable under section 16 of the Act as the tenant bad not been actually ejected when the application for notifying the vacancy was made.

G The appellant'• writ petition was dismissed by the High Court on the ground

that before notifying the vacancy tho Eviction Officer did not hear reipondent No. 3: .

Allowing the appeal

HEW : The High Court w.. in error in dismis.ling the appellant's writ petition.

The High Court doeo not appear to have con•idered the history Of the case and the various proceedings leading to the eviction of the tenant and to the fact that respondent No. 3 bad ao claim or right to the property.

Re<1pondent No. 3 never came in po11C11ion of the premises but tried to defeat or

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ASHOK KUMAR v. I ADDL. DISTT. JUDGE (Fazal Ali, !.) 505

delay the decree by varioll8 subterfuges and pretexts.

At no stage could he A show that ho was either a sub-tenant or a partner of tho tenant. There wOi, therefore, no question of his being heard by the Eviction Officer after possession waa delivered to the landlord and the vacany notified. If at all, such a hearing would have been futile and would have ultimately led to the same reswt.

[508E&DJ

The Appellate Authority took a wrong view of the law in allowing the res- B pondent's appeal. Under section 16(1) of the Act it was not necessary that tho 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 tho District Magistrate may require a landlord to let any building which is about "o fall vacaut to any person specified in the order. Manifestly it is not necessary that under section 16(l)(a) the premises must actually become vacant before an application under it could be filed before tho District Magistrate. In the C instant case as the decree for ejectment was under contemptation it 'vas open to the appellant to move the District Magistrate for notifying the vacancy under the section. [507 E-GJ

CML 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, Vi; ay K. Jain and R. K. Gupta for the Appellants.

Bishamber Lal for Respondent No. 3.

'The Judgment of the Court was delivered by

FAZAL Au, 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 , J"l=arised bus.

The premises in question which are situated in Nainita! 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,

Keslµr 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 furufah . 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

SUPREME COURT REPORTS

[1981] 2 S.C.R.

District Judge on 31st March, 1973.

On April 25, 1973, the landlord-appellant in anticipation of the premises falling vacant filed an application before !he 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 a.nd permission of the landlord and had purchased D 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, howev•er, 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 ih pursuance of the decree for ejectment obtained by the appellant. During the pendency of snit, 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 Si'ngh tried to resist the delivery of possession and abused the Conunissioner 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 II suit No. 27 of 1972 alleging that as he had become the sole tenant, Keshar Singh ceased to be a tenant of the disputed properly and the decree was wrongly passed against Keshar Singh.

He also pleaded

...

ASHOK KUMAR v. I ADDL. DISTT. JUDGE (Fazal Ali, J.) 507 , that the suit being a collusive one, the decree should be set aside.

A The suit filed by respondent No. 3 does not appetr 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 objectious 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 viction Officer who rejected the application filed \Jy 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 tiled 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 E 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 Jet any building which is or has fallen vacant or is about to fall vacant, or a part of such building but not appurtenant land

&lone, 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 sub- H sequently and the delivery of possession was also given to the landlord in pursuance of the decree of ejectment passed by the civil court.

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s o s

SUPRE11E COURT REPORTS

[1981] 2 S.6.11..

A 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 bis 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 B possession of the premises in question but tried to defeat or delay !be decree passed by the civil court in favonr of the appellant by various subterfuges and pretexts. However, as the appellate authority bad 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 bear 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 be was a sub-tenant or a partner of Keshar Singh.

His attempt to get !he decree, passed in favour of the appellant, set aside failed.

In these circum.stances, therefore, there was no question of his beiug heard by the Eviction Officer after !he 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 op; nion !hat the High Court erred in law in dismissing the writ petition and up holding 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 appel land will be entitled to costs in this Court quantified at Rs. 2,000 1 (Rupees two thousand m:;Ӥ ) .

11'.B.R.

Appeal allowed.