Salamatullah vs The Prescribed Authority and Another

H.N. Seth, J.—This petition under Article 226 of the Constitution by tenant is directed against an order passed by the Prescribed Authority dated 14-2-1979 allowing an application u/s 21(1)(a) read with Section 43(2)(rr) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U.P. Act No. XIII of 1972, filed by the Respondent No. 2 Durbal Ram.

Respondent No. 2, Sri Durbal Ram, was the landlord of the two shops in the tenancy of the Petitioner Salamatullah. On 17-2-1967, Respondent No. 2 obtained permission u/s 3 of the U.P. Temporary Control of Rent and Eviction Act, 1947 for filing a suit for Petitioner�s ejectment from the two shops. This permission was obtained on the ground that Durbal Ram needed the two shops for his personal occupation. Salamatullah went up in revision before the Commissioner, Varanasi Division, who vide his order dated 30-12-1967 held that the need of the landlord could be satisfied if the Petitioner surrendered one of the two shops to him. He, accordingly, directed the Petitioner to surrender one of the two shops to Durbal Ram within a period of 15 days, failing which the permission granted by the Rent Control and Eviction Officer would become fully effected. The Petitioner was not satisfied with the decision of the Commissioner. He, accordingly, went up in revision before the State Government which was dismissed on 16-9-1968. He then filed a writ petition before this Court which too was dismissed on 27-11-1969. Salamatullah took the matter in special appeal which too was eventually dismissed on 12-10-1976.

After dismissal of the special appeal filed by Salamatullah, Durbal Ram moved an application u/s 43(2)(rr) of U.P. Act No. 13 of 1972 read with Section 21(1)(a) of the same Act for execution of the permission granted by Rent Control and Eviction Officer for Salamatullah''s ejectment. Salamatullah resisted the prayer made by Durbal Ram on the ground that the permission to file the suit for his eviction granted under U. P. Act No. 13 of 1972 had become final by 16-9-1968 when the State Government rejected his revision u/s 7F of that Act. The application for execution filed on 6-1-1977 was, therefore, barred by time. The plea raised by Salamatullah was repelled by the Prescribed Authority which held that the application filed by Durbal Ram was within time. It accordingly directed that in case Salamatullah failed to vacate the shops within 15 days, Durbal Ram would be entitled to obtain possession of the same through court. Aggrieved, Salamatullah has again approached this Court for relief under Article 226 of the Constitution.

Learned Counsel appearing for the Petitioner contended that the Prescribed Authority committed a manifest error when it held that the permission obtained by Durbal Ram under the provisions of U.P. Act No. III of 1947, which had under that Act become final on 16-9-1968, could be executed more than 3 years after that date under the provisions of Section 43(2)(rr) read with Section 21 of U.P. Act No. XIII of 1972.

Section 43(2)(rr) lays down that:

Where any permission referred to in Section 3 of the old Act has been obtained on any ground specified in Sub-section (1) or Sub-section (2) of Section 21, and has become final, either before the commencement of this Act, or in accordance with the provisions of this sub-section, after the commencement of this Act, (whether or not a suit for the eviction of the tenant has been instituted), the landlord may apply to the Prescribed Authority for his eviction u/s 21, and thereupon the Prescribed Authority shall order the eviction of the tenant from the building under tenancy, and it shall not be necessary for the Prescribed Authority to satisfy afresh as to the existence of any ground as aforesaid, and such order, shall be final and shall not be open to appeal u/s 22.

But the second proviso to this clause lays down that no application shall be maintainable on the basis of permission granted u/s 3 of the Old Act, where such permission became final more than three years before the commencement of the Act but then in computing the period of three years the time during which the Applicant has been prosecuting with due diligence a civil proceeding whether in a court of first instance or appeal or revision shall be excluded.

Even if it be taken that permission granted by the Rent Control and Eviction Officer had become final on 16-9-1968. The question that still remains for consideration is as to whether the said permission had become final more than three years before the commencement of U.P. Act No. XIII of 1972 which came into force with effect from 15-7-1972. The second proviso to Section 43(2)(rr) lays down that in computing the period of three years the time during which the Applicant had been prosecuting any civil proceeding whether in a court of first instance or appeal or revision shall be excluded. In the instant case we find that soon after passing of the order by the State Government on 16-9-1969, Salamatullah himself filed writ petition which was dismissed on 27-11-1969 and the special appeal against it was dismissed on 12-10-1976. Durbal Ram has undoubtedly been with due diligence prosecuting these proceedings before this Court. In the case of Ramesh v. Genda Lal Moti Lal Patni 1966 SC 1445, and in the case of Arbind Kumar Singh v. Nand Kishore Prasad 1968 SC 1227, it has been held by the Supreme Court that such proceedings are civil proceedings. In the circumstances, it cannot be doubted that in between the year 1967 to 1976, Durbal Ram had been, with due diligence, prosecuting civil proceedings in this Court, which were proceedings in the court of first instance and in appeal. Accordingly in computing the period of three years, the time during which the writ petition and the special appeal filed by Salamatullah remained pending in the High Court has got to be excluded. Excluding the period during which the writ petition and the special appeal filed by Salamatullah remained pending in this Court, it cannot be doubted that the proceedings instituted on 6-1-1977 for enforcement of the permission obtained under U.P. Act No. III of 1947 which had become final on 16-9-68, was well within time.

Learned Counsel appearing for the Petitioner placed reliance on the case of Udai Bhan Singh and Others Vs. The Board of Revenue, U.P., Allahabad and Others, and urged that in the circumstances the question whether the permission granted under the old Act has become final has to be considered in relation to the provisions of that Act, and that Durbal Ram is not, in computing the period of three years prescribed for moving the application u/s 43(2)(rr), entitled to exclude the period during which the writ petition and the special appeal filed by Petitioner remained pending in this Court. We have carefully gone through the decision cited by the learned Counsel but it does not support the submission made by him. All that this decision lays down is that the question whether a permission granted under U.P. Act No. III of 1947 has become final or not, has to be considered from the point of view of the provisions contained in that Act and that such permission would be final despite the fact that it is amenable to this Court''s jurisdiction under Article 226 of the Constitution. This case does not lay down that either the proceeding under Article 226 of the Constitution before the High Court is not civil proceeding or that the time spent in prosecuting the writ petition cannot be excluded in computing the period of three years as provided in the 2nd proviso to Section 43(2)(rr) of the U.P. Act No XIII of 1972.

Since the only point raised in this petition is devoid of merits, the petition fails and is dismissed with costs.