Mahendra Pratap Singh vs Upper Zila Magistrate (Supply)/R.C. and E.O. and Others

J.C. Gupta, J.—This writ petition is directed against the order dated 31.7.1993 passed by Respondent No. 1, the Rent Control and Eviction Officer confirming the vacancy report given in respect of House No. 120 (new number 123) Dharampura, G. T. Road Ghaziabad. The Petitioner claims himself to be the sitting tenant.

The facts, in brief, are that one Vijai Kumar Jain filed an application before the Rent Control and Eviction Officer for allotment of the premises in question whereupon proceedings were initiated and a report from the Rent Control Inspector was called for. The said Inspector submitted a report after making inspection of the premises in question in accordance with rules and also made inquiry from the Petitioner also. In his statement before the Rent Control Inspector, the Petitioner stated that he has been in occupation as tenant since the year 1976. He further stated that one Ripu Daman Singh Bedi was the previous owner-landlord and thereafter Satya Bhushan and Gopal Das Estate became owners and in the present time Smt. Suman Lata Respondent No. 2 is the landlady. He further told the Inspector that he has been depositing the rent in court since 1986 and rent from 20.12.1991 to 20.4.1992 was sent through Money Order to Respondent No. 2 and it was not accepted by her. He further told that there is an electricity connection in the house in his name and photostat copies of some documents were also given to him. Those copies related to rent receipts ranging from 1986 to 1988, copy of receipt showing the deposit of Rs. 435 on 12.4.1991 in the U.P. Electricity Board, copy of the Service Connection No. 103/134/37, dated 28.4.1991; whereas according to the landlady the Petitioner came in occupation in the year 1981-82 when he was permitted as licensee to use the house for sometime while he was in service of Gopal Das Estate. The Rent Control Inspector was of the opinion that from the document produced by the Petitioner before him, it was not proved that he has been tenant in the disputed house since before 5.7.1976 and, therefore, the house in question could be treated to be vacant. However, he further reported that before the vacancy was notified, the concerned parties might be heard. Thereafter notice was given to the Petitioner as well as to the landlady and the Rent Control and Eviction Officer after giving them reasonable opportunity of hearing, passed the impugned order.

Learned Counsel for the Petitioner argued before this Court that the Rent Control and Eviction Officer has recorded a finding that the Petitioner had been inducted in the house in question in the year 1982 for three months as licensee; whereas the rent receipts produced before the authority concerned showed that he had paid rent in respect of the house in question in the year 1980 as well. Learned Counsel for the Respondents, on the other hand, argued that while examining the question whether any deemed vacancy occurred under the provisions of U.P. Act No. 13 of 1972, the relevant consideration is whether or not the person who claims himself to be tenant, was in occupation of the tenanted accommodation prior to 5.7.1976. i.e., the date of enforcement of the Amending Act and if it is found that the person concerned was not in occupation prior to that date, then his occupation in the absence of any valid order of allotment would be unauthorised and in that event there would be a vacancy under law.

Section 11 of the Act puts prohibition on letting without allotment order which lays down "Save as hereinafter provided, no person shall let out any building except in pursuance of the allotment order issued u/s 16 of the Act.

Section 13 of the Act puts a restriction on occupation of building without allotment order. It reads as under:

Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy in any capacity on his behalf, or otherwise than under an order of allotment or release u/s 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31 be deemed to be an unauthorised occupant of such building or part.

The object of Section 11 is to regulate the letting of building to which Act applies by means of an order of allotment, issued u/s 16(1). The ban on letting of building without order of allotment will put all vacant buildings at the disposal of the District Magistrate. Unlike the Old Act No. 3 of 1947, in the present Act, the Legislature has included specific provision in Section 11, whereby a total prohibition has been imposed on the letting of accommodations, otherwise than by way of allotment. Section 13 puts restrictions on all the persons to occupy the vacant accommodation on behalf of landlord and tenant otherwise than under an order of allotment or release u/s 16, and if such a person so purports to occupy the building, which is governed by the Act, he shall be deemed to be an unauthorised occupant and the building shall be open for allotment or release as the case may be. Under the provisions of the new Act, any contract of tenancy between the landlord and tenant after coming into force of the Act is hit by Section 23 in the absence of an order of allotment. Under the present Act, letting of a building without an order of allotment as well as occupation of the building by the tenant in the absence of the same, would be void and illegal.

However, Section 14 of the Act makes a provision under which occupation of an existing tenant is regularised by legal fiction which says that "Notwithstanding anything contained in this Act or any other law for the time being in force, any licence (within the meaning of Section 2A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building."

Section 14 of the Act is in the nature of a proviso to Section 13 which restricts occupation of buildings without allotment order. It creates a legal fiction by a deeming clause that where any person is found in occupation of a building as a tenant with the consent of the landlord immediately before the commencement of the Act, Le., 5.7.1976, not being a person against whom a suit or proceeding for eviction is pending before any court or authority on the date of such commencement, he shall be deemed to be an authorised tenant of such building even in the absence of an order of allotment. For the applicability of Section 14, the following conditions must exist:

that the person concerned must be in occupation of the building from before the commencement of the Act.

2 that occupation of such person should be as a tenant with the consent of the landlord, and

3 that no suit or proceeding for eviction should be pending before any court or authority on the date of the commencement of the Act.

If all these conditions exist, by legal fiction the occupation of that person becomes authorised, even though there may not be any order of allotment in his favour.

The most crucial and starting point for examining the question whether benefit of Section 14 could be availed of by the person claiming it, is that he should be in occupation of the building prior to 5.7.1976. The necessity to examine whether other conditions also existed to attract Section 14 of the Act or not, will arise only where occupation is proved to be from before 5.7.1976. It Is only when this condition is fulfilled, the court is required to examine whether other necessary conditions laid down in Section 14 of the Act are also fulfilled or not.

In the present case, therefore, the most relevant point for determination before the Rent Control and Eviction Officer was whether the Petitioner was in occupation of the premises in question since before the commencement of the Act. Once it was found that the Petitioner came into occupation after the commencement of the Act, it was immaterial whether he came in occupation in the year 1982 or in the year 1980.

Learned counsel for the Petitioner during the course of arguments submitted that in the municipal records, occupation of the Petitioner was recorded in the Assessment Register for the years, 1972 to 1977. It has been found by the Rent Control and Eviction Officer that those entries were got manipulated by the Petitioner and later on they have been expunged and corrected by the municipal authorities, so no advantage can be availed of by the Petitioner on the bar-is of such non-existent entries. All the documents, which were produced before the Rent Control Inspector, merely showed the possession of the Petitioner after 5.7.1976 and even before this Court the Petitioner could not produce any documentary proof in support of the allegation that he has been in occupation of the house in question before 5.7.1976.

Learned counsel for the Petitioner further contended that the report of the Rent Control Inspector was not admissible as conclusive. Assuming for the sake of argument that the report was not conclusive, the Petitioner did not produce any other evidence before the Rent Control and Eviction Officer to show that he has been in occupation prior to 5.7.1976.

Learned counsel for the Petitioner also contended that before declaring vacancy, the Petitioner was not afforded any reasonable opportunity of hearing. Learned counsel for the Respondents, however, pointed out that this contention is incorrect, inasmuch as the Petitioner filed objections to the report of the Rent Control Inspector and thereafter he did not produce any evidence before the Rent Control and Eviction Officer, though the proceedings remained pending for long. As already stated above, even before this Court the Petitioner could not produce any document to show his occupation in the building in question prior to 5.7.1976. Therefore, It cannot be said that the Petitioner has had no reasonable opportunity of hearing. The finding of the Rent Control and Eviction Officer that the evidence on record did not prove that the Petitioner has been in occupation prior to 5.7.1976 is essentially a finding of fact based on appraisal of evidence and no infirmity could be found therein. In view of this finding of fact, question of extending benefit of the provisions of Section 14 to the Petitioner does not arise because the most vital and foremost ingredient of Section 14, i.e., occupation on or before the date of commencement of the Act, is lacking. Therefore, occupation of the Petitioner in the premises in question in the absence of an order of allotment was unauthorised and the Rent Control and Eviction Officer has committed no illegality in notifying vacancy by the impugned order.

For the above reasons, this writ petition must fail and it is accordingly dismissed. The Rent Control and Eviction Officer may now proceed to pass necessary orders according to law on the release application moved on behalf of the landlady. The interim order dated 16.5.1997 is vacated. In the circumstances the parties are directed to bear their own costs.