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PETITIONER: ASHOK KUMAR & ORS.

       Vs.

RESPONDENT: ADDITIONAL DISTRICT JUDGE, NAINITAL & ORS.

DATE OF JUDGMENT09/01/1981

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA BHAGWATI, P.N.

CITATION:  1981 AIR  771            1981 SCR  (2) 504  1981 SCC  (1) 427        1981 SCALE  (1)50

ACT:      Uttar Pradesh  Urban Buildings  (Regulation of Letting, Rent and Eviction) Act, 1972-Section 16(1) (a)-Scope of.

HEADNOTE:      The appellants  were the  landlords of  a  building  in which the  tenant was running a hotel. They filed a suit for the tenant’s eviction on the ground that he had defaulted in the payment  of rent. The suit was decreed. The landlord, in anticipation  of  the  premises  falling  vacant,  filed  an application before  the Rent Controller and Eviction Officer under section  16 of the U.P. Urban Buildings (Regulation of Letting, Rent  and Eviction)  Act, 1972  for release  of the building in question.      In the  meantime respondent  No.  3  filed  a  petition before the  District Judge alleging that he was a partner in the hotel  business with  the consent  and permission of the landlord and that the landlord be directed not to dispossess him. This  application  was  rejected  on  the  ground  that respondent No.  3 was  neither a party to the ejectment suit nor was  any objection  filed by  him during the pendency of the suit  alleging that  he had  a  share  in  the  business carried out by the tenant.      After physical possession of the premises was delivered to the appellant decree-holder respondent No. 3 filed a suit against the  appellant and  the former  tenant  for  setting aside the  ejectment decree.  He claimed  that it was he who was the  sole tenant  and, that  for this  reason the decree could not  have been  passed against  the former tenant. The suit was dismissed.      The appellant  made an  application before the Eviction Officer that  the premises  be allotted to him. The Eviction Officer rejected  the objection  raised by  respondent No. 3 and released  the property  in favour  of the appellant. The Appellate Authority,  however,  allowed  respondent  No.  38 appeal holding  that the  application filed  by the landlord was not  maintainable under  section 16  of the  Act as  the tenant had  not been  actually ejected  when the application for notifying the vacancy was made.      The appellant’s writ petition was dismissed by the High Court on  the ground  that before  notifying the vacancy the Eviction Officer did not hear respondent No. 3.

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    Allowing the appeal ^      HELD :  The High  Court was  in error in dismissing the appellant’s writ petition. The High Court does not appear to have considered  the history  of the  case and  the  various proceedings leading to the eviction of the tenant and to the fact that  respondent No.  3 had  no claim  or right  to the property. Respondent  No. 3  never came in possession of the premises but tried to defeat or 505 delay the  decree by various subterfuges and pretexts. At no stage could  he show  that he  was either  a sub-tenant or a partner of  the tenant. There was, therefore, no question of his being heard by the Eviction Officer after possession was delivered to  the landlord  and the  vacancy notified. If at all, such  a hearing  would have  been futile and would have ultimately led to the same result. [508 E & D]      The Appellate Authority took a wrong view of the law in allowing the respondent’s appeal. Under section 16(1) of the Act it  was not necessary that the application for notifying the vacancy  should be  made only  after the  premises  have become  actually   vacant.  Section  16(1)  (a)  so  far  as relevant, provides  that the District Magistrate may require a landlord to let any building which is about to fall vacant to any  person specified  in the order. Manifestly it is not necessary that  under section  16(1)(a)  the  premises  must actually become  vacant before an application under it could be filed before the District Magistrate. In the instant case as the  decree for  ejectment was under contemplation it was open to  the appellant  to move  the District Magistrate for notifying the vacancy under the section. [507 E-G]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1154 of 1974.      Appeal by  Special Leave  from the  Judgment and  Order dated  16-11-1978  of  the  Allahabad  High  Court  in  Writ Petition No. 1086/76.      R. K.  Garg, Vijay  K. Jain  and R.  K. Gupta  for  the Appellants.      Bishamber Lal for Respondent No. 3.      The Judgment of the Court was delivered by      FAZAL ALI,  J. This appeal by special leave is directed against an  Order dated  November 16, 1978 of the High Court of Allahabad  dismissing the  writ  petition  filed  by  the appellants.      The facts  of the case fall within a narrow compass and may be summarised thus.      The premises in question which are situated in Nainital were commonly  known  as  ‘Waverly  Quarters’  and  properly called as  ‘Hotel Waldrof’.  According to the appellants the premises were  rented out  to one  Keshar Singh on an annual rent of Rs. 14,000 on November 17, 1953 and the allotment of Hotel Waldrof  to the tenant, Keshar Singh, was confirmed by the Rent  Controller sometime  in the year 1954. Thereafter, the tenant-Keshar  Singh defaulted  in the  payment of  rent resulting  in  a  suit  filed  by  the  appellants  for  his eviction. This  suit was  filed on  9-4-72 for ejectment and for recovery  of arrears  amounting to Rs. 26,743, due up to June 4,  1971. On  March 12,  1973 the  tenant was  asked to furnish security  for arrears  which he  failed to do and an application  by   the  tenant  for  extension  of  time  for furnishing security was also rejected by the

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506 District Judge  on 31st  March, 1973. On April 25, 1973, the landlord-appellant in  anticipation of  the premises falling vacant filed  an application  before the  Rent  Control  and Eviction Officer,  Nainital (hereinafter  referred to as the ‘Eviction Officer’)  under s.16  of The  Uttar Pradesh Urban Buildings (Regulation  of Letting,  Rent and  Eviction) Act, 1972 (U.P.  Act No.  13 of 1972) (hereinafter referred to as the ‘Act’)  for release of the building in question. On this application, the  Eviction Officer directed the Inspector to submit a  report on  the question  as to  whether or not the premises had  fallen vacant. Meanwhile as the tenant had not deposited the  rent as  directed by the Court, nor furnished the security  his defence was struck off and the appellant’s suit for eviction was decreed on 9-5-1973.      After the  decree for  ejectment was passed against the tenant,  Respondent   No.  3,   Harbans  Singh,   filed   an application on  11-5-1973 in  the court  of District  Judge, Kumaon, Nainital  on the allegation that he was a partner of Keshar Singh  in the  business of  Hotel  Waldrof  with  the consent and permission of the landlord and had purchased the moveables of  the aforesaid  Hotel  from  Keshar  Singh.  He further prayed  that the  landlord-appellant be directed not to dispossess  him (Harbans  Singh). This  application  was, however, rejected  by the  District Judge on the ground that Harbans Singh  was neither a party to the ejectment suit nor was any  objection filed  by him  during the pendency of the suit alleging  that he  had any  share in  the business. The application of Harbans Singh was accordingly rejected by the District Judge on 12-5-73.      Subsequently on  21-5-1973, the  Rent Control Inspector reported to  the Eviction  Officer that the building in suit which was allotted to Keshar Singh in 1954 had fallen vacant in pursuance  of the  decree for  ejectment obtained  by the appellant. During  the pendency  of the  suit, the  original tenant, Keshar  Singh had been appointed a Receiver of Hotel Waldrof but  after  the  decree  was  passed,  he  delivered physical possession  of the  Hotel to  the  appellant-decree holder in the presence of witnesses. It appears that Harbans Singh tried  to resist the delivery of possession and abused the Commissioner but to no avail.      Thus, having  failed in  his attempts,  to  resist  the delivery of possession to the appellant, Harbans Singh filed a suit  (No. 47  of 1973)  in the  court of  District  Judge against the  appellant and  the former tenant, Keshar Singh, for setting aside the ejectment decree passed in suit No. 27 of 1972  alleging that  as he  had become  the sole  tenant, Keshar Singh  ceased to be a tenant of the disputed property and the  decree was  wrongly passed against Keshar Singh. He also pleaded 507 that the  suit being  a collusive  one, the decree should be set aside.  The suit  filed by  respondent No.  3  does  not appear  to   have  been  pursued  and  ultimately  it  stood dismissed on 11-6-1975.      Sometime in  July 1973  the appellant  by means  of  an application informed  the Eviction Officer that the landlord had been  delivered possession  of the Hotel and prayed that since the  premises had  fallen  vacant,  the  same  may  be allotted to  him. Respondent  No. 3,  however, on  8-11-1973 filed objections  to the  application of  the  landlord  for releasing the  accommodation on  the allegation  that he had filed a  suit for setting aside the decree. The Rent Control Inspector on  being  asked  to  report  the  exact  position submitted his  report to  the Eviction  Officer who rejected

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the application  filed by  respondent No.  3 and by an order dated 18-11-1974  released the  property in  favour  of  the appellant with  the exception of the outhouses which were in possession of different tenants. Harbans Singh then filed an appeal  on   11-4-1974  before   the   appellate   authority challenging the  order of  the Eviction Officer. This appeal was admittedly time-barred. The appeal was, however, allowed by  the   appellate  authority   on  the   ground  that  the application filed by the landlord was not maintainable under s.16 of  the Act as the tenant had not been actually ejected when the application for notifying the vacancy was made.      There can be no doubt that the appellate authority took a wrong view of law in allowing the appeal because under the provisions of  s.16(1) of  the Act it was not necessary that the application  for notifying  the vacancy  should be  made only after the premises have become actually vacant. Section 16(1)(a) runs thus:           "16(1) Subject  to the provisions of this 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)." (Emphasis supplied).      It  is  manifest  that  under  s.16(1)(a),  it  is  not necessary that  the premises  must  actually  become  vacant before an  application under s. 16 could be filed before the District Magistrate.  In the  instant case,  as a decree for ejectment was  under  contemplation,  it  was  open  to  the appellant  to   have  moved   the  District  Magistrate  for notifying the vacancy under s.16(1) (a) of the Act.      We have  already pointed out that the premises did fall vacant subsequently  and the delivery of possession was also given  to  the  landlord  in  pursuance  of  the  decree  of ejectment passed by the civil court. 508 Respondent No.  3 appears  to have  made a futile attempt to make confusion  worse confounded  by representing  that  the premises were  not vacant  when he  knew full  well that the delivery of  possession was  given to  the landlord  in  his presence and he had later filed a suit for setting aside the decree which was dismissed. Thus, it appears from the record that  respondent   No.  3,  Harbans  Singh,  never  came  in possession of  the premises  in question but tried to defeat or delay  the decree  passed by the civil court in favour of the appellant  by various subterfuges and pretexts. However, as the  appellate authority had accepted the appeal filed by respondent No.  3, the appellants were compelled to take the matter to the High Court by way of a writ petition. The High Court, however,  dismissed the  writ petition  mainly on the ground that  before  notifying  the  vacancy,  the  Eviction Officer did  not hear  respondent No. 3. The High Court does not appear  to have  considered the  history of the case and the various  proceedings leading  to the  eviction of Keshar Singh and  to the  fact that respondent No. 3 had absolutely no claim or right to the property. At no stage could Harbans Singh prove  that either he was a sub-tenant or a partner of Keshar Singh.  His attempt  to get  the  decree,  passed  in favour of the appellant, set aside failed.      In  these   circumstances,  therefore,   there  was  no question of  his being  heard by  the Eviction Officer after the possession was delivered to the landlord and the vacancy was notified.  If at  all, such  a hearing  would have  been futile and  would have ultimately led to the same result. In these circumstances,  we are clearly of the opinion that the

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High Court  erred in law in dismissing the writ petition and upholding the  judgment of  the District Judge remanding the matter to  the Eviction  Officer. We,  therefore, allow this appeal, set  aside the  judgment of  the High  Court as also that of  the District  Judge (the  appellate authority)  and restore the  order of  the Eviction  Officer  releasing  the accommodation in favour of the appellant. The appellant will be entitled  to costs  in this Court quantified at Rs. 2,000 (Rupees two thousand only). P.B.R.                                       Appeal allowed. 509