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PETITIONER: MOHD. NAZIR

       Vs.

RESPONDENT: BECHAND PRASAD & ORS.

DATE OF JUDGMENT:       28/02/1997

BENCH: M.M. PUNCHHI, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      A building  in the  town of  Banaras  was  statedly  in possession of  a dancing  girl;  it  having  been  owned  by respondent No.  1 herein.  That dancer  is  stated  to  have associated with  her two musicians to carry on her vocation. That duo  us respondent  Nos. 2  and 3 herein. All the three respondents are  represented by the same learned counsel. At a point  of time,  by an  executive drive,  all the  dancing girls were  statedly  driven  out  of  the  area  where  the building in  dispute stood  located. The building, according to  the  claim  of  the  landlord,  was  not  available  for regulation of  letting. The  authorities  concerned  took  a contrary view and considered that the building was lettable. An order  under Section  16  of  the  U.P.  Urban  Buildings (Regulation of  Letting, Rent  And Eviction)  Act, 1972 [the Act] was  passed in  favour of  the appellant herein - Mohd. Nazir -  on 17.5.1972  in  respect  of  the  above-mentioned building. According  to him, he was put in possession of the property in  pursuance of  the allotment  order but  he  was ousted therefrom  by the  landlord and the dancing girl with her two  musicians were  put back in possession. The dancing girl is  now dead and it is the musicians who continue to be in possession  of the building under the protective umbrella of the landlord.      In such  distress, the  appellant  moved  the  District Magistrate under Section 16(4) of the Act for being restored possession thereof  or, in  other words,  to be again put in its possession.  The District Magistrate spurned his request on the  footing that the law enjoined the allottee being put in possession  of the building only once and that obligation the District  Magistrate had  duly fulfilled.  It was  taken that in the eye of law, the appellant was in possession over the  property.   On  such  view  taken,  the  appellant  was constrained to  move the  Civil Court  against the  landlord seeking restoration of possession of the building. The Civil Court recorded  a finding that since the appellant was never put in possession, the question of restoration could not and did not  arise. Shielded  with that  finding, the  appellant again approached the District Magistrate under Section 16(4)

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of the  Act, requiring  the said  Authority to  put  him  in possession as  per the  Civil Court’s  finding he  had never been put  in possession.  The District  Magistrate this time allowed the  request of  the appellant and ordered his being put in  possession. The  landlord and  the musicians took up the  matter  in  revision  before  the  District  Judge  who confirmed the  order of  the District  Magistrate. The  High Court, however,  in writ  proceedings at the instance of the landlord and  the musicians, upset the order of the District Magistrate, taking the view that the District Magistrate had no power  to reinstate  the  appellant  in  possession  when earlier, as  per averment,  possession had been delivered to the appellant.  Further, the  view taken  was that the Civil Court’s judgment  was not binding on the District Magistrate and that the doctrine of res judicata was applicable.      The reasons advanced by the High Court in upsetting the valid and  just  orders  of  the  District  Magistrate  were totally out  of tune of the requirements of Section 16(4) of the Act. The said provision reads as follows:           "(4) Where the allottee or the      landlord  has   not  been  able  to      obtain possession  of the building,      allotted to him or, as the case may      be, released  in his favour, or any      part    thereof,    the    District      Magistrate, on  an  application  of      the allottee  or the  landlord,  as      the case may be, may by order evict      or cause  to be  evicted any person      named in the order as will as every      other person  claiming under him or      found in  occupation, and  may  for      that purpose  use or  cause  to  be      used such force as may be necessary      and but  or cause  to  be  but  the      allottee   or   the   landlord   in      possession  of   the  building   or      part."      It is plain from the language employed in the provision that the District Magistrate is not only required to put the allottee in  possession if  he has  not been  able to obtain possession of  the building allotted to him, he is eminently required to  see that  the allottee  remains  in  possession without let  or hindrance from the landlord or his henchmen, as otherwise  the right  conferred under  sub-section (4) of Sec. 16  would be  illusory and  be a  breeding  ground  for unnecessary litigation. It would in a sense upset the entire scheme of  the Act if the mighty landlord, or some people at his behest, can have their way in ousting the tenant and the District Magistrate  not helping him retain it. Beyond this, we consider  it unnecessary  to go  into this  aspect of the matter. The  District Magistrate has not only to put back in possession the  allottee but  is otherwise empowered to pass all  consequential   and  incidental   orders  to   maintain possession of  the allottee.  In the  wake thereof, the High Court committed  an error  in upsetting  the just, legal and equitable orders of the District Magistrate. In this view of the matter,  We unhesitatingly  upset the impugned orders of the High  Court and restore that of the District Magistrate, requiring the  appellant to  be put  in  possession  of  the building forthwith by evicting the unauthorised occupants/ contestants. No  question of res judicata arises in the fact situation.      The appeal is thus allowed. No costs.

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