Mohammad Akbar Husain vs District Judge and Others

N.D. Ojha, J.—By this writ petition an order passed by the Rent Control & Eviction Officer and another by the District Judge in revision under Sections 16 and 18 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, respectively are sought to be quashed.

An application was made by Respondent No. 3 for allotment of the accommodation in question. After hearing Respondent No. 3 and the Petitioner, who claims to be the owner of the property, the Rent Control & Eviction Officer by his order dated 9th June, 1975, allotted the accommodation to Respondent No. 3. An appeal was filed against that order u/s 18 of the aforesaid Act but during the pendency of the appeal the Act was amended and the provision for appeal was substituted by a provision for revision. The appeal was consequently treated as revision and was dismissed by the District Judge on 17th February, 1977. Aggrieved the Petitioner has filed the present writ petition.

Only two submissions were made by Shri S.J. Hyder, counsel for the Petitioner, before me.

The first submission made was that even accepting the findings recorded by the Rent Control & Eviction Officer and the District Judge, Pyare Khan the former tenant having died before the commencement of the Act aforesaid and the Petitioner being in factual possession of the accommodation thereafter Section 16 of the Act was not applicable. According to counsel Section 16 applied to accommodations which fell vacant after the commencement of the said Act or were likely to fall vacant thereafter. It was urged that since the Petitioner was factually occupying the accommodation on the date of the commencement of the Act it cannot be said that the accommodation was vacant. This being so no order of allotment could be passed in favour of Respondent No. 3. In my opinion there is no substance in this submission. The proposition is well settled and has not been challenged by counsel for the Petitioner that under the U.P. (Temporary) Control of Rent & Eviction Act, 1947, if an accommodation was vacated by a sitting tenant and was occupied by the landlord in his capacity as the landlord of the property but without any order of release in his favour, the accommodation continued to be vacant and available for allotment notwithstanding its factual possession by the landlord. Consequently under the old Act notwithstanding the fact that the Petitioner occupied the accommodation in question on its becoming vacant on account of the death of its tenant Pyare Khan, the said accommodation continued to be vacant and available for allotment. The question which falls for consideration is whether the legal position was in any way changed by the enactment of the new Act. In my opinion it has not been changed in any manner. The view which I take finds support from a plain reading of Section 16 of the Act. The relevant portion of Section 16 is to the effect that subject to the provisions of this Act the District Magistrate may by order 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. If the intention of the legislature was to make only such accommodation available for allotment u/s 16(1) of the Act which either fell vacant or was about to fall vacant after the commencement of the Act the word "is" between the words "which" and "or has fallen vacant" would not have been used in Section 16(1). The use of the word "is" clearly indicates that Section 16 made applicable even to such accommodation which had fallen vacant before the commencement of the new Act and was vacant on the date when the Act came into force. No exception was made by the Act in respect of the accommodations which had fallen vacant under the old Act and were vacant on the commencement of the new Act for purposes of allotment or release except those which fell u/s 14 of the Act. Apparently Section 14 of the Act is not applicable to the facts of the instant case. It is thus apparent that the accommodation in question was available for allotment and the order of allotment passed in favour of Respondent No. 3 cannot be said to be invalid on the ground that the vacancy had not occurred after the commencement of the new Act.

As an alternative argument, it was urged by counsel for the Petitioner that the word "vacant" in Section 16 meant factually vacant on the commencement of the new Act. In my opinion it is difficult to accept this submission also. Either the new Act is not applicable to the accommodations which had fallen vacant under the old Act and were lying vacant on the commencement of the new Act or it was applicable to them also. If it was not applicable to such accommodations as was the main submission made by the Petitioner''s counsel, the matter ends. But if it was made applicable, I find no justification for putting two meanings to the word "vacant" used in Section 16: one meaning in respect of the accommodations which were lying vacant on the commencement of the Act and another meaning in respect of the accommodations which either fell vacant or were likely to fall vacant under the new Act. The word "vacant" in Section 16 will include every accommodation vacated by a tenant either before or after the commencement of the new Act and in respect of which neither any order of allotment nor any order of release has been passed as also an accommodation which is likely to fall vacant. The fact of its factual occupation is not relevant. Of course if the case is covered by Section 14 of the Act no order of allotment may be necessary to be passed because of the language of Section 14 which more or less is in the nature of an exception.

It was also urged by counsel for the Petitioner that Section 16 cannot be interpreted in isolation but had to be read with Sections 11, 12, 13 and 15. In my opinion even if these four sections are read before reading Section 16 the legal position is in no way altered. Section 11 deals with prohibition of letting without allotment order and only provides that save as hereinafter provided no person shall let out any building except in pursuance of an allotment order issued u/s 16. Section 12 deals with deemed vacancy of buildings in certain cases. The instant case is not one of deemed vacancy but of actual vacancy. Section 12 also is hardly relevant for determining the question which is up for consideration. Section 13 deals with restriction on occupation of a building without allotment or release. This section does not deal with the nature of the accommodation in respect of which an order of allotment or release can be passed. It only places a restriction on the right of a person to occupy a building without an order of allotment or release. Section 15 places an obligation on the persons referred to therein to intimate vacancy to the District Magistrate. It would thus be seen that none of the sections referred to by the counsel for the Petitioner has any material bearing on the interpretation of the question as whether an order of allotment can be passed u/s 16 in respect of an accommodation which fell vacant under the old Act and continued to be vacant when the new Act came into force.

It was then urged by counsel for the Petitioner that Section 43 of the Act exhaustively provides for the contingencies in which the old Act would apply and since Section 43 does not contain a provision that an order of allotment could be passed even in respect of an accommodation which had fallen vacant under the old Act and continued to be vacant on the commencement of the new Act, the District Magistrate had no jurisdiction to pass an order of allotment in respect of such an accommodation. In my opinion this submission too has no substance. Section 16 is the section which deals with the allotment and release of buildings and since that section in unequivocal terms brings within its folds even such accommodations which had fallen vacant before the commencement of the new Act, and in respect of which no order of allotment and release had been passed the mere fact that Section 43 does not contain a provision such as submitted by counsel for the Petitioner is not of any consequence.

The second submission made by counsel for the Petitioner was that the identity of the accommodation in question had not been established. Suffice it to say in regard to this submission that both the Rent Control & Eviction Officer and the District Judge have on the basis of the evidence on record come to a definite conclusion that the accommodation in question was the same which hud been occupied by Pyare Khan and which fell vacant consequent upon his death. It is not the Petitioner''s case that the accommodation in question is not in existence at all. Once the accommodation in dispute exists then on the finding that it is the same accommodation which was occupied by Pyare Khan and fell vacant on his death the identity of the accommodation in question is clearly established. The order of allotment cannot be held to be invalid on this ground as well.

No other point has been pressed.

In the result I find no merit in this petition. It is accordingly dismissed with costs. The Petitioner is, however, granted one month''s time to vacate the accommodation in question and handover its possession to the allottee Respondent No. 3. The order of allotment shall not be enforced during this period of one month. It is, however, made clear that if the Petitioner does not handover the possession to Respondent No. 3 within the aforesaid period it would be open to the authority concerned to put the Respondent No. 3 in possession immediately thereafter in pursuance of the allotment order.