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Judgment
I.M. Quddusi, J.—Heard learned counsel for the petitioner Sri Nagendra Singh and the learned counsel for the Caveators who are opposite party Nos. 3 and 4, Sri Sandeep Seth.
This writ petition has been filed challenging the judgment and order dated 1.9.2001 passed by the Prescribed Authority under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''the Act'') in P.A. Case No. 7 of 1998 and the judgment and order dated 20.4.2002 passed by VIth Additional District Judge, Pratapgarh in Rent Appeal No. 1 of 2001.
The Prescribed Authority vide impugned order dated 1.9.2001 allowed the application for release of the premises in dispute and directed the tenant to vacate the premises in dispute i.e. the shops, within 30 days from the date of judgment. The appellate court has dismissed the appeal and confirmed the judgment and order of the Prescribed Authority.
At the very outset it is necessary to mention that in Section 11 of the Act, there is specific prohibition for a person to let any building except in pursuance of an allotment order issued under Section 16 of the Act. Section 13 of the Act also provides that where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy in any capacity mentioned as above or otherwise than under an order of release under Section 16 of the Act if a person so purport to occupy it without prejudice, he shall be taken to be in unauthorized occupation of such building or a part thereof. The provision of Sections 11 and 13 of the Act are quoted as under :
"11. Prohibition of letting without allotment order.Save as hereinafter provided, no person shall let any buildings except in pursuance of an allotment order issued under Section 16."
"13. Restrictions on occupation of building without allotment, or release.Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise than under an order of allotment or release under Section 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 premises in dispute i.e. the shop Nos. 14/15 situated in Mohalla Avadh Bihari Lal Road, Pargana and Tahsil Sadar, Pratapgarh, was let out to the petitioner in the year 1980 through an agreement in writing. The opposite party Nos. 3 and 4, i.e., (he landlords moved an application under Section 21 (1) (a) of the Act which is quoted as under :
"21. Proceedings for release of building under Occupation of the 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." for eviction of the petitioner from the premises in dispute for the alleged bonafide requirement of the landlord. The prescribed authority entertained, heard and allowed the application, namely. P.A. Case No. 7 of 1998, against which an appeal was filed by the petitioner, which was dismissed. Hence the instant writ petition.
There are so many grounds raised by the petitioner. The first ground raised is that in fact he was not allotted the premises in dispute under the Act but the accommodation was leased out to him under a written agreement executed between him and the opposite party Nos. 3 and 4 and as such, in view of Nootan Kumar and others v. II Additional District Judge, Banda and others decided by the Full Bench of this Court reported in 1993 (2) AWC 1090 (FB) : 1993 (2) ARC 204 : AIR 1994 All 298, the agreement was void and the application was not maintainable before the Prescribed Authority under the Act. It has been submitted that possession of the petitioner was of an unauthorised occupation and not of a tenant. Therefore, the application was not maintainable and was liable to be dismissed as such but the Prescribed Authority as well as the appellate court has committed manifest error of law in entertaining the application and allowed the same as well as dismissed the appeal, respectively.
During the pendency of this writ petition, the judgment given by the Full Bench of this Court at Allahabad in Nootan Kumar''s case (supra), was set aside by the Apex Court vide its judgment given in W.P. Nos. 7254 and 7255 of 1996 reported in 2002 (8) SCC 31.
Learned counsel for the opposite parties Sri Sandeep Seth has placed reliance on the decision of Apex Court in Nootan Kumar''s case (supra) and submitted that the case of Nanak Ram v. Kundal Rai, (1986) 3 SCC 83 was followed by the Apex Court therein and it was held by the Apex Court that as Nanak Ram''s case was decided by three Hon''ble Judges of the Apex Court, it would be binding.
In view of the abovementioned arguments of learned counsel for the parties, this Court is of the opinion that the question whether application under Section 21 (1) of the U.P. Act XIII of 1972 was maintainable or not and whether learned court below has committed any manifest error of law in entertaining the application or not, should be dealt with first before dealing with other questions.
The brief facts of Nut an Kumar''s case (supra) are liable to be considered first before proceeding further. In that case, the premises was let out to the tenant and the tenancy was created otherwise in pursuant to allotment order. The suit for recovery of arrears of rent and damages for use and occupation and ejectment was filed in the court of Judge, Small Causes/Civil Judge, Banda after termination of tenancy under Section 106 of the Transfer of Property Act through a notice alleging that the tenant fell in arrears of rent for a period exceeding four months and failed to pay the same to the lessor within one month from the date of service of notice. The suit was registered as S.C.C. suit No. 17 of 1972. The defendant filed written statement and admitted the plaintiffs to be the owners of the suit premises as also created contractual tenancy in his favour though he did not admit the rate of rent.
In the instant matter, the opposite party Nos. 3 and 4 had filed an application for release of the premises in dispute and for eviction of the petitioner on the ground that the premises is bona fide required by them i.e. on their personal need.
Therefore, the difference of facts between the case of Natan Kumar (supra) and the instant case, are clear. For this purpose, the provisions of Section 21 (1) (a) and (b) of the Act are liable to be perused which are quoted as under :
"21. Proceedings for release of building under occupation of the 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 from 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 constructions :"
Under the above provisions the words ''tenant'' and ''tenancy'' have been used. Section 11 of the Act does not permit a person to occupy any building without a valid allotment order. Therefore, if a person occupies the premises without having any proper allotment order in his favour, he cannot be said to be a ''tenant'' within the meaning of the Act. Section 16 of the Act provides that 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 (to be called an allotment order ); or
The provisions of Section 16 (1) (a) of the Act in this regard are quoted as under :
"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"
Subsection (8) of Section 16 provides that the allottee shall, subject to provisions of subsections (5) and (9) and Section 18, be deemed to become tenant of the building from the date of allotment or, where he is unable to obtain possession by reason of a stay order or of any other person having occupied or continued to occupy the building, from the date on which he obtains possession, which is also quoted as under :
(8) the allottee shall, subject to provisions of subsections (5) and (9) and Section 18, be deemed to become tenant of the building from the date of allotment or, where he is unable to obtain possession by reason of a stay order or of any other person having occupied or continued to occupy the building, from the date on which he obtains possession."
Under Section 18 of the Act an appeal lies to the District Judge against the allotment or the release order.
Therefore, subsection (8) of Section 16 of the Act specifically provides that a person, in whose favour an allotment order is made under the U.P. Act XIII of 1972, shall be deemed to become a tenant of the building. Therefore, in case there is no allotment in favour of a person under the said Act, he cannot be termed to be a ''tenant'' under the U.P. Act XIII of 1972 and, thus, the provisions of Section 21 for release of the accommodation against a person, who is not a tenant, would not be maintainable in view of the fact that under Section 21 of the Act, as quoted above, the proceedings can be held against a ''tenant'' for eviction of the building under his tenancy, but the person who cannot be termed as ''tenant'' under the U.P. Act XIII of 1972, will certainly not come within the scope of Section 21, although there may be an agreement between the parties, i.e., the lessee and lessor to lease out the premises against the provisions of U.P. Act XIII of 1972.
In Nutan Kumar''s case (supra) the Apex Court has held that there is no contrary or conflicting decision or authority to the principle laid down in Nanak Ram''s case, (1986) 3 SCC 83 (supra). It is binding and the Full Bench of this Court could not have taken a contrary view of the same. However, the Hon''ble Apex Court has further observed that Section 13 of the Act specifically provides that a person who occupies, without an allotment order in his favour, shall be deemed to be an unauthorised occupant of such premises and if he is in unauthorised occupation, he is like a trespasser and a suit for ejectment of a trespasser to get back possession from a trespasser could always be filed. Such a suit would not be on the contract/agreement between the parties and would thus not be hit by principles of public policy also.
The Apex Court has further laid down the law in Nootan Kumar''s case as under :
"Thus, unless the statute specifically provides that a contract contrary to the provisions of the statute would be void, the contract would remain binding between the parties and could be enforced between the parties themselves."
Since the Apex Court has held that Nanak Ram''s case (supra) decided by 3 Hon''ble Judges of the Apex Court would be binding, the law laid down by the Apex Court in Nanak Ram''s case (supra) is also liable to be followed.
In this connection, the facts of the Nanak Ram''s case are also liable to be seen, which are as under :
"Now, in deciding Murlidhar Aggarwal this Court approved of the proposition of law laid down by the Allahabad High Court in Udhoo Dass. The High Court had the provisions of Section 7 and Section 7A of the U.P. Rent Act before it. Section 7 required the landlord to report to the District Magistrate if his house had fallen vacant or was about to fall vacant, and thereupon the District Magistrate was empowered to direct the landlord to let the premises to a person specified in the order. The High Court dealt with the question whether a lease between the landlord and another person in violation of the order of the District Magistrate would be a valid lease as between the parties thereto. It held that such a lease would be valid between the parties. It would not, however, be binding on the District Magistrate. That it would not be binding on the District Magistrate that it was evidenced by the power conferred upon him under Section 7A (1) of the U.P. Rent Act to take proceedings for the eviction of such tenant. Section 7A (1) provided that if the vacancy of an accommodation was not reported or a person occupied an accommodation in contravention of an order issued under Section 7 (2) the District Magistrate could require him to show cause why he should not be evicted from it. If he failed to show cause the District Magistrate could direct him to vacate the accommodation and if he failed to vacate the District Magistrate could use force to evict him. The power conferred on the District Magistrate to take proceedings for the eviction of such tenant was discretionary. It was open to the District Magistrate not to exercise the power if there was undue delay or if for other good reason he found it inexpedient to do so. If he did not exercise the power conferred by Section 7A (1), the lease between the landlord and the other person would continue to subsist and that other person would continue to enjoy the status of a tenant. It would be a valid lease. It could not be regards as a void lease. In a case under the Rent Control Order, with which these appeals are concerned, the position appears to be materially similar. The landlord is prohibited by Clause 22 (1) from occupying the house or granting a lease except in accordance with Clause 23. There is a prohibition under Clause 22 (2) on any other person seeking to occupy the house, except again in accordance with Clause 23. In Clause 23 it is the Deputy Commissioner who will order the landlord to let the vacant house to a person indicated by him, a person who falls in one of the categories specified in the clause or, if he is satisfied, he may permit the landlord himself to occupy the house. As was the position under the U.P. Rent Act, so also under the Rent Control Order, the Deputy Commissioner has power under Clause 28 to take steps and use force for the purpose of securing compliance with, or for preventing or rectifying, any contravention of the Rent Control Order. Clause 28 speaks of a power conferred on the Deputy Commissioner in that behalf. Nowhere does the Rent Control Order mandate that the Deputy Commissioner must eject a person who has entered into possession of a house in violation of Clause 22. If upon a view of the circumstances prevailing then, the Deputy Commissioner takes no action in the matter, there is no reason why the lease between the landlord and the tenant, although inconsistent with Clause 22, should not be binding as between the parties thereto. It is not a void transaction. There is nothing in the Rent Control Order declaring it to be so. Now if the lease is not void then it is not open to either party to avoid the lease on the ground that it is inconsistent with Clause 22. The parties would be bound, as between them, to observe the conditions of the lease, and it cannot be assailed by either party in a proceeding between them."
The Full Bench decision of this Court in Udhav Das v. Prem Prakash, AIR 1964 All. 1, wherein it has been laid down that the lease made in violation of the provisions of Section 7 would be valid between the parties and would create a relation of landlord and tenant, although it might not bind the Rent Control Officer, has been upheld by the Apex Court in Nanak Ram''s case (supra).
Therefore, in Nanak Ram''s case (supra), it has been held that the lease made in violation of the provisions of the U.P. Rent Act between the parties i.e. the lessor and lessee, would be binding between them but it has been mentioned by the Apex Court that the same would not be binding upon the Rent Control and Eviction Officer.
Therefore, if an application under Section 21 (1) (a) of the Act has been moved against a person, with whom the contract to lease out the premises contrary to the provisions of the Act, was made, has been void under Section 21 (1) for the purpose of U.P. Act XIII of 1972, the lessee cannot be termed as ''tenant'' under the said Act. Thus, the lease between the landlord and the tenant contrary to the provisions of Sections 11 and 13 of the Act will not be binding upon the Prescribed Authority under the said Act and the application would not be entertain able against that person treating him as ''tenant'' under the Act contrary to the provisions of subsection (8) of Section 16 of the Act, as quoted above.
Therefore, this Court has no doubt in its mind that the application, filed by the opposite party Nos. 3 and 4 under Section 21 (1) (a) of the Act against a person who cannot be termed as a ''tenant'' in view of subsection (8) of Section 16 of the Act, was not maintainable and was misconceived and the same was not entertainable in the eye of law.
Since this Court has held that the application was itself not maintainable, no further points are necessary to be dealt with.
In the result, the writ petition is allowed. The impugned judgment and order dated 1.9.2001 passed by the Prescribed Authority in P.A. Case No. 7 of 1998 and the judgment and order dated 20.4.2002 passed by VIth Additional District Judge, Pratapgarh, are quashed. The application for release shall stand dismissed as not maintainable. However, this judgment would not preclude the opposite parties to file a suit as held by the Hon''ble Apex Court in Nootan Kumar''s case.
No order as to costs.