Wazahat Ullah vs Marween Hector & Anr.

S.P. Mehrotra, J.—The present writ petition has been filed by the petitioner under Article 226 of the Constitution of India, inter alia, praying for quashing the order dated 291989 (Annexure3 to the writ petition) passed by the Prescribed Authority, Mirzapur and the judgment and order dated 342003 (Annexure5 to the writ petition) passed by the learned Additional District Judge/Special Judge (N.D.P.S. Act), Mirzapur (Appellate Authority).

It may be mentioned that a complete copy of the judgment and order dated 291989 passed by the Prescribed Authority, Mirzapur has been filed as Annexure1 to the amendment application referred to hereinafter.

The dispute relates to a portion of a house situated in Mohalla Ramai Patti, Mirzapur.

The details of the said house (hereinafter referred to as �the house in question�) are given in ScheduleAa to the release application referred to hereinafter.

The details of the said portion in dispute are given in ScheduleBa to the said release application referred to hereinafter. The said portion has hereinafter been referred to as �the dispute portion.�

The petitioner herein has, interalia filed the following in the writ petition:

(1) Amendment Application supported by an affidavit sworn on 135 2003.

Supplementary affidavit sworn on 3172003.

The said amendment application was allowed on 3092003, and the amendments sought have been incorporated in the writ petition.

A perusal of the averments made in the writ petition and the aforesaid amendment application and its accompanying affidavit as well as the aforesaid supplementary affidavit shows that the respondent No. 1 herein filed a release application under Section 21(1) of the U.P. Act No. XIII of 1972 (in short �the Act�) against the respondent No. 2 herein (Sukhwant Singh) for the release of the disputed portion. It was, inter alia, alleged in the said release application that the respondent No. 2 herein (Sukhwant Singh) was the tenant in the disputed portion at a monthly rent of Rs. 30; and that the respondent No. 2 herein (Sukhwant Singh) was residing with his family outside Mirzapur and was keeping the disputed portion locked; and that the respondent No. 1 herein (landlord) had got Engineering degree but was unemployed, and he had no means of livelihood; and that the respondent No. 1 herein (landlord) wanted to establish a Nursery School for children in the portion of the house in question in occupation of the respondent No. 1 herein (landlord); and that the respondent No. 1 herein (landlord) would reside in the disputed portion alongwith his wife, while in the portion presently in occupation of the respondent No. 1 herein (landlord), he would start a Nursery School for children. The said release application was registered as Case No. 115 of 1983.

It further appears that the respondent No. 2 herein (Sukhwant Singh), despite service of notice by publication, did not file any objections.

It further appears that in compliance with the order dated 2351984 passed by the Prescribed Authority, the petitioner herein was impleaded as the opposite party No. 2 in the said release application. In view of the impleadment of the petitioner herein as the opposite party No. 2, the respondent No. 1 herein (landlord) amended the said release application by adding paragraphs 17 and 18 in the said release application.

It was, inter alia, stated in the said paragraphs 17 and 18 of the said release application that the petitioner herein was not residing in any part of the disputed portion as tenant, and the status of the petitioner herein was only that of a servant of the respondent No. 2 herein (Sukhwant Singh); and that the petitioner herein was not a necessary party in the release application, but he had been impleaded as the opposite party No. 2 in the release application in compliance with the order passed by the Prescribed Authority, and that as the petitioner herein was residing in the disputed portion as a servant of the respondent No. 2 herein (Sukhwant Singh), he was liable to be evicted alongwith the respondent No. 2 herein (Sukhwant Singh). Copy of the said release application, as amended, is annexed as Annexure1 to the writ petition.

As mentioned above, the respondent No. 2 herein (Sukhwant Singh) did not file any objections. However, the petitioner herein contested the said release application by filing written statement, copy whereof has been filed as Annexure2 to the writ petition.

It further appears that the parties filed affidavits and documents in support of their respective cases.

The Prescribed Authority, Mirzapur by its judgment and order dated 291989 (Annexure1 to the said amendment application) allowed the said release application in respect of the disputed portion, and directed the respondent No. 2 herein (Sukhwant Singh) and the petitioner herein to vacate the disputed portion within thirty days and handover possession thereof to the respondent No. 1 herein (landlord).

It was, inter alia, held in the said judgment and order dated 291989 that the release of the disputed portion had been sought for residential purposes, and not for commercial purposes. It was, inter alia, further held that the respondent No. 2 herein (Sukhwant Singh) was the tenant of the disputed portion; and that the petitioner herein was residing in the disputed portion with the respondent No. 2 herein (Sukhwant Singh) as the servant of the latter (i.e., respondent No. 2 herein Sukhwant Singh); and that, therefore, the petitioner herein had no right to object to the release application, and there was no question of considering his hardship. It was, inter alia, further held that as the respondent No. 2 herein (Sukhwant Singh) had not filed any objections, it was established that the need of the respondent No. 1 herein (landlord) was bona fide, and that the respondent No. 1 herein (landlord) would suffer greater hardship in case, the disputed portion was not released.

It was, inter alia, further held that Section 23 of the Act was applicable not only against the tenant but also against any such person who was found in actual occupation of the accommodation.

Thereupon, it appears that the petitioner herein filed an appeal under Section 22 of the Act. The said appeal was registered as Misc. Appeal No. 7 of 1989.

By the judgment and order dated 342003, the Appellate Authority dismissed the said appeal, and confirmed the said judgment and order dated 291989 passed by the Prescribed Authority, Mirzapur.

It was, inter alia, held in the said judgment and order dated 342003 that Clause (g) inserted in subsection (1) of Section 2 of the Act by the U.P. Act No. V of 1995 with effect from 2991994 would not apply to the pending cases; and that the present release case was pending since 1983, while the said amendment came into force much later, and as such, the said amendment was not applicable to the present case. It was, inter alia, further held that the conclusion of the Prescribed Authority that the petitioner herein was residing in the disputed portion with the respondent No. 2 herein (Sukhwant Singh) as the servant of the respondent No. 2 herein (Sukhwant Singh), was correct. It was, inter alia, further held that the release of the disputed portion was not being sought for commercial purposes as the School was to be opened in the portion which was presently in occupation of the respondent No. 1 herein (landlord). It was, inter alia, further held that the provisions of Section 23 of the Act were applicable not only against the tenant but were also applicable as against any person found in actual occupation of the disputed portion.

Thereafter, the petitioner herein has filed the present writ petition seeking the reliefs mentioned above.

I have heard Shri Narendra Mohan, learned counsel for the petitioner herein and Shri Waseem Alam, learned counsel for the caveator/ respondent No. 1 herein (landlord) at length.

Shri Narendra Mohan, learned counsel for the petitioner submits that the finding recorded by the authorities below that the petitioner herein was residing in the disputed portion as the servant of the respondent No. 2 herein (Sukhwant Singh), was erroneous. It is submitted by Shri Narendra Mohan that the status of the petitioner herein was that of tenant and not servant. It is submitted that in fact, the petitioner herein was tenant of a portion other than the disputed portion.

I have considered the submissions made by Shri Narendra Mohan, learned counsel for the petitioner herein, and I find myself unable to accept the same. The Prescribed Authority, Mirzapur on a detailed consideration of the evidence on record including the own admission of the petitioner herein in an affidavit (Exhibit1) recorded categorical finding that the petitioner herein was residing in the disputed portion itself, and that the petitioner herein was residing in the said disputed portion as servant of the respondent No. 2 herein (Sukhwant Singh).

The said finding recorded by the Prescribed Authority, Mirzapur in the said judgment and order dated 291989 was confirmed by the Appellate Authority in its judgment and order dated 342003.

The said finding recorded by the authorities below is a finding of fact. No illegality or perversity has been shown in the said finding recorded by the authorities below. Therefore, no interference is called for by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India with the said finding of fact recorded by the authorities below.

Shri Narendra Mohan, learned counsel for the petitioner herein then submits that the petitioner herein was in occupation of the disputed portion since prior to 1976 and, therefore, the petitioner herein was entitled to the benefit of Section 14 of the Act.

In order to appreciate the submission made by Shri Narendra Mohan, learned counsel for the petitioner herein, it is relevant to refer to the provision of Section 14 of the Act which is quoted below:

�14. Regularisation of occupation of existing tenants. Notwithstanding 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, 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 authorized licensee or tenant of such building.�

A perusal of Section 14 of the Act shows that the said provision applies to any licensee (within the meaning of Section 2A of the Act) or a tenant in occupation of 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. Thus, Section 14 of the Act applies only in case of licensee within the meaning of Section 2 A of the Act or in the case of a tenant.

Section 2A of the Act provides as follows:

�[2A. Special provisions for short term licence. (1) Notwithstanding 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 under Section 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.

(2) Such licensee shall not be deemed to be a tenant for purposes of Section 20, notwithstanding that he pays or is liable to pay rent for such occupation.

(3) Such licensor shall not be deemed to have ceased to occupy such building or part within the meaning of Section 12 merely on the ground of having granted such licence.

(4) The District Magistrate shall not make an allotment under Section 16 in respect of the building or part vacated by the licensee except with the consent of the landlord.

(5) 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 subsection except after giving to the parties concerned a reasonable opportunity of being heard.

(6) The provisions of Section 23 shall apply to an order made under subsection (5) as if it were an order made under Section 21 or under Section 22].�

As noted above, the authorities have recorded categorical finding that the petitioner herein was residing in the disputed portion as servant of the respondent No. 2 herein (Sukhwant Singh). Thus, the petitioner was not a �tenant�.

Further, the petitioner was also not a �licensee� within the meaning of Section 2A of the Act. This is because, Section 2A of the Act contemplates a licence for a specified period as mentioned in the said Section 2A of the Act. In the present case, there was no such fixed period.

Moreover, First Proviso to Section 2A (1) of the Act requires joint intimation 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. There is nothing on the record to show that the said condition was fulfilled in the present case.

Therefore, the petitioner herein was neither a �licensee� within the meaning of Section 2A of the Act nor was he a �tenant�. Hence, the provisions of Section 14 of the Act were evidently not applicable to the case of the petitioner herein.

The submission of Shri Narendra Mohan, learned counsel for the petitioner herein, that the petitioner herein was entitled to the benefit of Section 14 of the Act, cannot, in my opinion, be accepted.

Shri Narendra Mohan, learned counsel for the petitioner herein, lastly submits that the Appellate Authority was not correct in holding that Clause (g) inserted in subsection (1) of Section 2 of the Act by the U.P. Act No. V of 1995 with effect from 2991994 would not apply to the present release case which was pending since 1983.

Having considered the submission made by Shri Narendra Mohan, learned counsel for the petitioner herein, I find myself unable to accept the same.

Clause (g), as inserted in subsection (1) of Section 2 of the Act by the U.P. Act No. V of 1995 with effect from 2991994, is as follows:

�2. Exemptions from operation of Act. (1) Nothing in this Act shall apply to [the following, namely]:

(a) to (f) .....................................

[(g) any building, whose monthly rent exceeds two thousand rupees;

(h) ......................................]�

............................................�

In M/s. Ambalal Sarabhai Enterprises Ltd. v. M/s. Amrit Lal & Co. and others, AIR 2001 SC 3580 : 2001 SCFBRC 484, their Lordships of the Supreme Court were dealing with a similar provision contained in Section 3(c) of the Delhi Rent Control Act, 1958, which was brought through amendment with effect from 1121988.

Their Lordships of the Supreme Court opined as follows (paragraphs 10, 35 and 36 of the said AIR):

�(10) This takes us to consider only the other appeal. The appellant tenant submits, it is the Civil Court alone which has jurisdiction after the aforesaid amendment not the Rent Controller, while respondent landlord submits, notwithstanding the aforesaid amendment it is the Rent Controller which would have the jurisdiction. From these submissions, following questions arise:

(1) Whether the landlord and tenant are relegated to seek their rights and remedies under the common law once the protection given to a tenant under rent control legislation is withdrawn through amendment?

(2) Can a ground of eviction based on illegal subletting under proviso (b) to Section 14 of the said Act be claimed by a landlord as a vested right?

(3) In case a protection given to a tenant under the Rent Act is said to be not a vested right and if that protection is withdrawn, can a landlord claim any ground of eviction under the Rent Act to be his vested right?

(35) In view of the aforesaid legal principle emerging, we come to the conclusion since proceeding for the eviction of the tenant was pending when repealing Act came into operation. Section 6 of the General Clauses Act would be applicable in the present case. As it is landlord''s accrued right in terms of Section 6. Sub section (c) of Section 6 refers to �any right� which may not be limited as a vested right but is limited to be an accrued right. The words `any right accrued'' in Section 6(c) is wide enough to include landlord''s right to evict a tenant in case proceeding was pending when repeal came in. Thus a pending proceeding before the Rent Controller for the eviction of a tenant on the date when the repealing Act came into force would not be affected by the repealing statute and will be continued and concluded in accordance with the law as existed under the repealed statute.

(36) In view of the aforesaid findings we conclude, by recording our findings on the question posed earlier by holding:

(1) A landlord or tenant are relegated to seek their rights and remedies under the common law once the protection give to tenant under the Rent Act is withdrawn, except in cases where Section 6 of the General Clauses Act,1897 is applicable;

(2) A ground of eviction based on illegal subletting under proviso (b) to Section 14 of the Rent Act would not constitute to be a vested right of a landlord, but it would be a right and privilege accrued within the meaning of Section 6(c) of the General Clauses Act in a matter if proceeding for eviction is pending;

(3) When tenant has no vested right under a Rent Act having only protective right, withdrawal of such protection would not confer on a landlord a vested right to evict a tenant under Rent Act except where subclause (c) of Section 6 of the General Clauses Act is applicable.

In view of these findings we hold landlord has a right under the repealed Rent Act by virtue of Section 6(c) of the General Clauses Act, which would save the pending proceedings before the Rent Controller, which may continue to be proceeded with as if repealed Act is still in force.�

In Smt. Champa Devi and another v. Rent Control and Eviction Officer (1st), Allahabad and another, 2002 (1) ARC 192 (DB), a Division Bench of this Court answered the question of law in regard to the effect of Clause (g) inserted in subsection (1) of Section 2 of the Act (i.e., U.P. Act No. XIII of 1972) by the U.P. Act No. V of 1995. The Division Bench held as under paragraphs 2, 3 and 4 of the said ARC):

�(2) Following question of law, on reference by a learned Single Judge, is up for consideration before this Bench:

�Whether clause (g) to Section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as U.P. Act No. 13 of 1972) which has been inserted in the Principal Act by Section 2 of U.P. Act No. 5 of 1995 will effect the proceedings pending on the date of enforcement of U.P. Act No. 5 of 1995?�

(3) The learned counsels appearing for the parties agree and submit that the question of referred by the learned Single Judge has been conclusively answered by the decision of the Hon''ble Supreme Court of India rendered in M/s. Ambalal Sarabhai Enterprises Ltd. v. M/s. Amrit Lal & Co. and Anr., reported in 2001 SCFBRC 484, and in the light of this decision, the answer to the question has to be in negative.

(4) Accordingly, the answer to the question referred would be that clause (g) to Section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, inserted in the Act by Section 2 of U.P. Act No. 5 of 1995, will not affect the proceedings pending on the date of enforcement of U.P. Act No. 5 of 1995.�

In Smt. Champa Devi and another v. Rent Control and Eviction Officer (1st), Allahabad, 2002(1) ARC 445, a learned Single Judge of this Court following the answer given by the Division Bench to the question of law in Smt. Champa Devi (supra), held as follows:

�This petition filed by landlord seeks issuance of a writ in the nature of certiorari quashing the order dated 1761996 whereby the Prescribed Authority held in view of Section 2(g) of the U.P. Act No. 13 of 1972 as amended by Act No. 5 of 1995 that the building in question went out of the purview of the Act. Issue was referred to Larger Bench as to whether the amended Act would affect the pending proceeding, the Division Bench in its judgment dated 1112002 held. Relying upon the Supreme Court decision in M/s. Ambalal Sarabhai Enterprises Ltd. v. M/s. Amrit Lal and Co. and another, reported in JT 2001(7) SC 477 : 2001 SCFBRC 84, that it did not affect the pending proceedings and were to be decided in accordance with law as it stood before the amendment. In the circumstances the orders impugned herein cannot be sustained. The writ petition therefore, succeeds and is allowed. The impugned orders are quashed. The matter is remitted to the Prescribed Authority for decision on the application under Section 21(8) of the U.P. Act No. 13 of 1972 in accordance with law as early as possible, preferably within six week from the date of presentation of the certified copy of this order. Payment made pursuant to the interim order passed by this Court would abide by the result of the application under Section 21(8) of the U.P. Act No. 13 of 1972.�

In view of the propositions laid down in the above decisions, it follows that Clause (g) inserted in subsection (1) of Section 2 of the Act (i.e., U.P. Act No. XIII of 1972) by the U.P. Act No. V of 1995 with effect from 2991994 was/is not applicable to the proceedings pending on the said date, namely, 2991994.

In the present case, as noted above, the release case was filed in the year 1983. The Prescribed Authority by its judgment and order dated 291989 allowed and the release application. Thereupon, the petitioner herein filed Misc. Appeal No. 7 of 1989. The said appeal was dismissed by the Appellate Authority on 342003.

Clause (g), as noted earlier, was inserted in subsection (1) of Section 2 of the Act (i.e., U.P. Act No. XIII of 1972) by the U.P. Act No. V of 1995 with effect from 2991994.

Hence, on the date when Clause (g) inserted in subsection (1) of Section 2 of the Act became effective, the release matter was already pending before the Appellate Authority. Therefore, in view of the above decisions, Clause (g), inserted in subsection (1) of Section 2 of the Act (i.e., U.P. Act No. XIII of 1972) by the U.P. Act No. V of 1995, was not applicable to the present case. The view of the Appellate Authority in this regard was correct.

In view of the aforesaid discussion, I am of the opinion that the writ petition lacks merit, and the same is liable to be dismissed. The writ petition is accordingly dismissed.