RAMESH CHAND Vs. PRESCRIBED AUTHORITY

JUDGEMENT

(1.) This is an Appeal by Special Leave against a judgment and order dated September 15, 1982 delivered by the, Allahabad High Court in Civil Miscellaneous Writ No. 14807.of 1981.

(2.) The appellant before us is the tenant of the shop in question. Respondent No. 1 is a pro forma party, namely, the Prescribed Authority, and respondent No. 2 is the landlord of the building containing the shop in question, situated at Mandi Harbansganj Dhampur. We propose to refer to the appellant as the tenant and respondent No. 2 as the landlord. In 1959 the landlord filed an application under S. 3(l) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as "the U.P. Rent Act of 1947") for the eviction of the tenant from the said shop. The said application was made on the ground that the landlord wanted to demolish the shops in the building including the said shop and in their place wanted to construct new shops and also to construct the residential portion on the first floor. In the new building the accommodation would be much larger and, apart from shops, even residential premises would be constructed. In paragraph 7 of the application, the landlord gave an "assurance (undertaking) that the applicant will give the new shop to the second party after the new shops are constructed on a reasonable rent". It is common ground that the applicant referred to was the landlord and the second party referred to was the tenant. This application was contested by the tenant along with other tenants, against whom also, the similar applications were filed. The application was made to the District Magistrate within the meaning of the said expression in sub-section (d) of S. 2 of the U.P. Rent Act of 1947. The Rent Controller and Eviction Officer who acted as District Magistrate within the connotation of the said term under the said Act, about which there is no dispute, granted the permission and rejected the contentions of the tenant. In the order granting the permission, which order is dated February 27, 1980, the Rent Controller and Eviction Officer noted that the landlord was ready to give the newly constructed shops to the tenants on a reasonable rent. Taking into account all relevant facts and circumstances including the aforesaid fact of the assurance-cum- undertaking given by the landlord, the permission to evict the tenant was granted. 'Against this decision all the tenants including the tenant herein filed revision petitions which were dismissed by the Commissioner, Rukhilkand Division; Bareilly. The tenants applied by way of further revision to the State Government under S. 7of the said U.P. Rent Act of 1947. In disposing of the revision petitions, the Special Secretary, who disposed of the same in the name of the Governor of the State of U.P., noted that the landlord had given an Undertaking to the tenants that they would be given newly constructed shops on standard rent and that during the period taken for construction, alternative accommodation would also be given to them. Thereafter, the landlord filed a suit on the basis of the aforesaid permission for eviction of the tenant. During the pendency of the suit, the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "the U. P. Rent Act of 1972") came into force. The U.P. Rent Act of 1947 was repealed by sub-section (1) of S. 43 of the U.P. Rent Act of 1972 save and except to the extent provided in the saving clause set out at sub-section (2) of that section. Some amendments were made to S. 43(2)(rr) in the U. P. Rent Act of 1972 by the U. P. Act of XXXIII of 1976, whereby the landlords who had on the basis of the permissions granted to them under S. 3(l) of the U.P. Rent Act of 1947 instituted suit for the eviction of the tenants were given the right to apply for eviction of their tenants straightway if the permission granted to them under S. 3(l ~ of the U.P. Rent Act of 1947 had been obtained on any ground specified in sub- section (1) or sub-section (2) of S. 21 of the U.P. Rent Act of 1972. Taking advantage of these provisions, the landlord filed an application for an order of eviction against the tenant on the ground that the permission had been obtained by the landlord on the ground specified in clause (b) of S. 21(l) of the U.P. Rent Act of 1972 and hence, he was entitled to an order of eviction straightway under S. 43(2)(rr) of the U.P. Rent Act of 1972. The Prescribed Authority dismissed the application of the landlord on the ground that the permission obtained by him was a conditional permission and it could not come into operation unless the landlord had complied with the offer made by him before the Rent Controller and Eviction Officer, namely, to make available to the tenant an alternative shop. It was held by the Prescribed Authority that till that condition was satisfied by the landlord, he could not claim the eviction of the tenant under S. 43(2)(rr) of the U.P.Rent Act of 1972. Against this order, the landlord preferred the aforesaid writ petition which was disposed of by the learned single Judge of the High Court by the impugned judgment. The learned Judge took the view that the Prescribed Authority was bound to allow the application of the landlord under S. 43(2)(rr) of the U.P. Rent Act of 1972 and order eviction. It was held by the learned Judge that the ground on which permission was granted by the Rent Controller and Eviction Authorities under the U.P. Rent Act of 1947 fell within clause (b) of subsection (1) of S. 21 of the U.P. Rent Act of 1972 and hence, the Prescribed Authority under the Act of 1972 had no jurisdiction to embark upon any fresh enquiry as to the nature of the permission. It was held by the learned Judge that the finding of the Rent Control authorities was that the building was in a dilapidated condition and required demolition and hence, the Prescribed Authority had no jurisdiction to impose any condition before granting an eviction order. It was held by him that the Prescribed Authority had failed to exercise its statutory duty to order the eviction of the tenant. The learned single Judge directed the Prescribed Authority to pass an order of eviction against the tenant. It is this judgment of the learned single Judge which is impugned before us by Shri Parmod Swaroop, learned counsel for the appellant.

(3.) Learned counsel for the appellant submitted that the decision of the Prescribed Authority to decline the prayer for eviction made by respondent No. 2 was justified in view of the undertakings given by respondent No. 2 when the permission to file a suit for eviction was given under the U.P. Rent Act of 1947 and the High Court was in error in upsetting the decision of the Prescribed Authority. It was, on the other hand, contended by Mr. Mehrotra, learned counsel for respondent No. 2 that in view of the provisions of S. 43(2)(rr) of the U.P. Rent Act of 1972, the Prescribed Authority had no jurisdiction to go behind the permission and was bound to give an order for eviction unconditionally as held by the High Court in its . impugned judgment. Although the judgment of the Prescribed Authority, which was set aside by the High Court, is not before us. It appears clear from the impugned judgment that the Prescribed Authority took the view that the permission granted to respondent No. 2 to file the suit for eviction was a conditional one and was operative only on the performance of the condition incorporated in the undertaking given by the landlord.