RAM NARAYAN SHARMA v.

SHAKUNTALA GAUR

APRIL 29, 2002

[D.P. MOHAPATRA AND BRIJESH KUMAR, JJ.]

Rent and Eviction:

Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) C Act, 1972: Sections 16(/)(a), 16(/)(b), 18 and 21(/)(a).

Allotment-Prospective allottee-Right to oppose-Exercise of-Held, the prospective allottees shall have no right to oppose the release petition moved by the landlord-On facts held, since the accommodation stood allotted D before the landlady acquired right in the property, the allottee could oppose the release petition.

Release Petition-On the ground of bonafide requirements-Landlord could not move such an application for a period of 3 years as per provisions contained in Section 21(/)(a).

Revision Petition-On the ground that notice was not served to other legal heir of the deceased landlord-Property in dispute settled in favour of heirs other than Revision Petitioner-Landlady moved an application for being impleaded as revisionist-Petition became inconsequential and infructuous- Landlady not allowed to take advantage by defeating the provision of the Law F to get the premises vacated from allottee.

Appellant moved an application for allotment of suit premises under Section 16(1Xa) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act Landlord of the premises died during the pendency of the allotment proceedings. Appellant moved an application for substitution G of the two sons of deceased-landlord as heirs, which was allowed, but they did not contest the application for allotment Rent Control and Eviction Officer allotted the premises to the appellant who took possession of the same.

Later on, one of the sons of the deceased-landlord filed a Revision Petition challenging the order of allotment on the ground that other children of the H deceased-landlord (other than the revision petitioner) had not been served 562

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R.N. SHARMA v. SHAKUNTALA GAUR 563

notice ofallotment proceedings. Jn the meanwhile the two sons of the deceasedlandlord as a consequence of settlement in arbitration proceedings, became owners of the suit premises and they had transferred the suit premises in favour of the respondent who moved an application in the pending Revision Petition for being impleaded as revisionist No. 2. However, the Revision Petitioner moved an application not pressing his pending Revision Application.

Civil Court allowed the revision Petition and set aside the order of allotment in favour of the appellant and remanded the case to the Rent Control and Eviction Officer to dispose of the same on merits. A Writ Petition preferred against the said order was rejected.

Transferee-Respondent moved an application for release of accommodation on the ground of bona.fide requirements, which was dismissed.

Consequently an order of allotment was also passed. Aggrieved, respondent preferred Revision Petitions, and the Court set aside the Order of allotment and released the accommodation in favour of the respondent. Appellant filed Writ Petition against the order of release of accommodation and it was dismissed. Hence the present appeal.

It was contended for the appellant that Revisional Court exceeded its jurisdiction in exercise of power under Section 18 of the Act and High Court erred in not taking note of the same as reappraisal of evidence for recording of finding of facts is not permissible.

Allowing the appea~ the Court

HELD: 1. 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 the satisfaction of the District Magistrate and on being so satisfied, an order of release could be passed. The Release application is to be disposed of first before passing an order on the application for allotment. But in the instant case the position is very peculiar which has not been properly appreciated in correct perspective. [570-G-H; 571-A-B)

1.2. The position that emerges is that respondent was not the landlady G when the accommodation was allotted to the appellant nor later on when the two sons of deceased-landlord became owners, Revision Petitioner's interest in property coming to an end, the revision filed by him even tho_11gh it was pending, it was an inconsequential and infructuous petition. The respondent had purchased the house from the sons of the deceased-landlord who became owners of the said property and moved an application for release theeafter. H

A It is significant to note that the order, of allotment passed earlier was in operation when two L.Rs. of the deceased-landlord became owners of the accommodation. [571-E, F, G]

1.3. Respondent had no connection with the then Landlord or his heirs so as to be entitled for moving an application under Section 16(l)(b) for release H of accommodation already allotted to the appellant before her predecessorin-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. [571-G, H; 572-A]

Lokesh Kumar Dwivedi v. /Ind Addi. District Judge, Lucknow, (1981) ARC C 34; Mahkar Singh v. Vlth Addi. District Judge, Meerut, (1994) ALR 2 107 and Taukhid Khan v. Special Judge. Nainital, (1996) 1 ARC 505, referred to.

1.4. Perhaps due to the hurdle in the way of the landlady for moving an application for eviction under Section 21(1Xa) for the period of three years by virtue of proviso, she tried to find a short cut to be impleaded as one of D the revisionists. In the facts and circumstances of the case, the Revisional Court and the High Court both erred in considring 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 2l(l)(a) of the Act for his eviction. The release application under Section 16(l)(b) of the Act E moved by the Respondent was misconceived. The order passed on the infructuous proceedings, namely, Revision would be inconsequential and shall not enure any benefit either to the petitioner who had filed the revision or to the respondent who moved application for.impleadment as a revisionist

[572-H; 573-A, B, C]

F 1.5. Respondent's impleadment as one of the revisionists, rightly or lo-' wrongly, would also be inconsequential since she had purchased the property from L.Rs. of the then landlord as the owners and predecessor-in-interest in the property and not as heirs. It is thus clear that there is no re!lson to treat the appellant as prospective allottee. The bona fide requirement of the respondent could not be considered in the)nfructuous proceedings of the G Revision. 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 bonafide requirement within three years of purchasing the property.

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3159 of A 2002.

From the Judgment and Order dated 16.11.99 of the Allahabad High Court in C.M.W.P. No. 47673 of 1999.

Aman Hingorani and Ms. Priya Hingorani, for Hingorani and Associates B for the Appellant.

Parag P. Tripathi, A.K. Yadav, Ms. Sangita Garg and K.V. Mohan for the Respondent.

The Judgment of the Court was delivered by

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 Vlth Additional District Judge, Muzaffarnagar passed an order dated D 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 F one Trilok Chand who vacated the premises and the appellant moved an application for its allotment under Section 16 (I) (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 tum 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

A 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.

B 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 interet in the property at all so as to be entitled to prosecute revision filed by him against c 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 ofSmt. 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 D 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 Addi. District Judge, however, by order dated 15.1.1996 allowed E 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 Addi.

District Judge also seems to have allowed the application moved by the respondent for being impleaded as revisionist No.2 but no order appears to F 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, G 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 H application for release moved in Suit No. 63 of 1989. As a consequence

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thereof an order of allotment was again passed on 31.3.1997 by the Rent A Control and Eviction Officer.

The respondent preferred two revisions No.4 of 1997 and 5 of 1997 in the Court of the Addi. District Judge, impugning the orders dated 27.3.1997 and 31.3.1997. The learned Addi. DistrictJudge allowed the revisions, setting aside the order of allotment dated 31.3.1997 passed in favour of the appellant B 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 C 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 talcing note of the same and further submits that the application for release of the accommodation moved by the respondent could not be D 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-

(I) 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 F 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 G appurtenant thereto, in favour of the landlord (to be called a release order):

[Provided that in the case ofa vacancy referred to in sub-section (4) of Section 12, the District Magistrate shall give an opportunity to the landlord or the tenant, as the case may be, of showing that the said H

A 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

B 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 c 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: D

(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; F

(d) such other particulars as may be prescribed.

(7) Every order under this section, shall subject to any order made

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,...

....

under Section 18, be final.

(8) The allottee shall, subject to the 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 B 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 C 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 D exercise of his jurisdiction illegally or with material irregularity,

(2) The revising authority may confirm or rescind the final order made under sub-section (I) 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 subsection 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 mentione1 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." G

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 H

A entitled to move an application for release of the accommodation sub-section

(7) of Section 16 provides that every order passed under Section 16 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 B had exercised jurisdiction not vested or has failed to exercise the jurisdiction or has exercised it illegally or with irregularity. Under sub-section (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 C held that the position of the appellant was that ofa 'prospective allottee' visa-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 D 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 E upon the decisions reported in (1981) ARC 34 - Lokesh Kumar Dwivedi v. /Ind Addi. District Judge, Lucknow, (1994) ALR 2 107; Mahkar Singh v.

Vlth Addi. District Judge, Meerut and (1996) I ARC 505; Taukhid Khan v.

Special Judge, Nainita/ 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 F 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 landlora. (' 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 G 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 H 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 A 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 B 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 C not to file any objection though served, preferred a revision on 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 D 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 E 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 F 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 15.2.1996. 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. G 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 Sectien 16 (l )(b) for release of accommodation already allotted to the appellant before her predecessor in interest had acquired rights in property exclusively. The H

A 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:

H Perhaps due to the hurdle in the way of the landlady for moving an

...

application for eviction under Section 21 (l)(a) for period of three years by A virtue of proviso, she tried to find a short cut to be impleaded as one of the revisionists i'1 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 above the Revisional Court B 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 (l)(a) of the Act for his eviction.

The release application.under Section 16 (!) (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 D 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 E 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 Mohan 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 F allottee. The bona fide requirement of the responJent 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 (l) of Section 21 of the Act, namely, she G 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 H

A 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 B 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.

S.K.S.

Appeal allowed.