Smt. Aquila Sarfaraz and Others vs Taufiq Ahamad Nizami

M. Katju, J.—This second appeal has been filed against the impugned judgment of the lower appellate court dated 23.12.1994.

Heard Sri Jagdish Prasad, learned Counsel for the Appellants and Shri R.H. Zaidi, learned Counsel for the Respondent.

The Plaintiff-Respondent filed a suit against the Appellants for eviction and possession and also for recovery of damages. The Plaintiff/Respondent claimed that he was owner of the property in dispute and the Defendant/ Appellant was a licensee in the house. His allegation was that the licence has been revoked. The statement of the Defendant/Appellants was that they were owners of the property In dispute and hence they could not be evicted. Both the courts below decided the case against the Appellant.

Learned Counsel for the Appellants urged that the Appellants are protected by Section 14 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act. His contention is that he was licensee and hence his licence was regularised by Section 14 of the aforesaid Act. This was not the case of the Appellants before the trial court although it was a pleading in the first appellate court. However, I have examined this plea and find no merit in the same Section 14 states:

Not with standing anything contained in this Act or any other law for the time being in force, any licensee (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, 1979, 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.

A reading of the above provision shows that Section 14 does not say that a licensee becomes regularised as a tenant. He only becomes an authorised licensee Section 2A(1) states:

Not with standing anything contained in this Act, a person occupying a building as owner or as tenant or in any other capacity (hereinafter in this Section referred to as licensor) may permit any other person (hereinafter in this Section referred to as licensee) to occupy for purely temporary residential accommodation for a period not exceeding three months without any Order of allotment u/s 16:

Provided that Intimation of the grant of such licence shall be given Jointly by the licensor and the licensee to the District Magistrate within one month from the date of occupation of the building or part by the licensee.

Provided further that the District Magistrate may by order extend the maximum period of such temporary occupation up to 6 months in the aggregate (including the original period of occupation).

Provided also that similar licence shall not be granted again to any other person in respect of the same building or part within a period of one year from the date of vacation of the building or part by the last licensee."

In my opinion the licensee contemplated in Section 2A is only a licensee for a limited period.

Section 2A(5) states:

If the licensee omits or refuses to vacate the building or part after the expiry of the period of licence the licensor may make an application to the prescribed authority for his eviction, and the prescribed authority shall thereupon order his eviction, and its order shall be final:

Provided that no order shall be made under this Sub-section except after giving to the parties concerned a reasonable opportunity of being heard.

An authorised licensee, u/s 14, can be evictefl u/s 2A(5) if the period of licence has expired. Thus the only protection given u/s 2A is that the licensee who has license for a fixed period and which is covered by Section 2A cannot be evicted before the period of licence has expired. The only protection of Section 2A to such licensees is that such a licensee cannot be evicted until the period of the licence has expired. However, it cannot be said that the protection continues even after the period of license has expired, otherwise the consequence will be that such a licensee cannot be evicted u/s 2A of the Act. Apart from Section 2A, there is no other provision for eviction of a licensee under the Act, and hence it will be an anomalous situation that whereas a tenant can be evicted under the Act (in proceedings Under Sections 16, 20 or 21) a licensee (who has Inferior right as compared to a tenant) cannot be evicted under the Act. In my opinion, the tenant-licensee may not even be paying rent and hence he has no right to continue in possession after the period of licence has expired. In my opinion, therefore, the correct interpretation of Section 2A is that it refers to licencees for a fixed period. Thus I am unable to accept the submission of the learned Counsel for the applicant because in this case there is neither pleading nor specific allegation that there was a licence for a fixed period. In my opinion neither Section 2A nor the amended Section 14 apply to this case. This view is supported by the decision of Ram Baran v. A.D.J. 1989 (15) ALR 506.

Learned Counsel for the applicant states that is contention finds support by the decision of this Court in Avinash Chandra''s case 1992 (20) ALR 1032. I am not In agreement with this contention of the learned Counsel. The decision in Avinash Chandra''s case applies to an case where the license is for a limited period. In fact If the licence is for an indefinite period, then Sub-section (5) of Section 2A will not be applicable.

Hence in my opinion Sub-section (5) applies only to a licence for limited period and not for an indefinite period. Learned Counsel for the applicant next argued that the Plaintiff-Respondent had entered into an agreement with the Appellant that the Appellant Is the owner of the premises. It has been observed by the lower appellate court after a detailed discussion that in fact there was no such agreement. This is a finding of fact and I cannot interfere. Thus there is no force in this appeal.

Accordingly this appeal is dismissed. However, in view of the facts and circumstances of the case I grant one year''s time to the applicant to vacate and handover possession to the landlord which he shall do on or before 13th February, 1996.

With these observations, this second appeal is dismissed.