GANGA DEVI Vs. DISTRICT JUDGE GHAZIABAD

JUDGEMENT

(1.) This petition is by a landlady challenging the orders dated 1-6-1978 and 3-12-1977 passed respectively by respondents Nos. 1 and 2 under the provisions of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction Act, 1972 (U. P. Act No. XIII of 1972) hereinafter referred to as the Act ). These are the relevant facts. The petitioner is the owner and landlady of the accommodation in dispute which is a shop, of which Sri S. P. Kapoor respon dent No. 4 was the tenant. On 19-2-1977, Sri J. K. Khurana respondent No. 3 filed an application before the Rent Control and Eviction Officer for the allotment of the shop on the allegation that Sri S. P. Kapoor was likely to vacate the shop shortly. An enquiry was ordered by the Rent Control and Eviction Officer upon this application. On 25-3-1977, the Rent Control Inspector submitted a report to the effect that Sri S. P. Kapoor had informed him that he was going to vacate the shop by 15-3-1977,- a vacancy may be notified, and notices for considering the matter of allotment be issued. Upon this report, on that very date, the Rent Control and Eviction Officer passed the following order:- "notify the vacancy and ask the landlord to file objections, if any. " It is alleged that Sri S. P. Kapoor handed over to the Rent Control Inspector, while the latter visited the shop on 25-3-1977, a copy of his letter dated 28-2-1977 by which Sri S. P. Kapoor is alleged to have informed the District Magistrate that he proposed to vacate the shop by 15-3-1977. In pursuance of the aforesaid order dated 25-3-1977, notice is said to have been issued to the landlady to file objections, if any, against the application of respondent No. 3. The landlady put in appearance on 31-3-1977 and asked for time to file objections. On 15-4-1977, the landlady filed an objection against the application of respondent No. 3 and simultaneously also filed an application for release of the shop under Section 16 (1) (b) of the aforesaid Act. The same day, the petitioner also moved an application before the Prescribed Authority under Section 21 of the aforesaid U. P. Act No. XFII of 1972 for an order of eviction against the tenant on the ground that she bonafide required the shop of her residence. Sin also made an application for stay of the proceedings before the Rent Control and Eviction Officer until the disposal of her application under Section 21 of the aforesaid Act. The stay was granted but upon objection by respondent No. 3 it was vacated on 26-6-1977. The tenant filed an objection and contested the above proceedings, under Section 21. After contest, upon a finding that the petitioner bonafide required the shop in dispute, the same was directed to be released in favour of the petitioner by the order of the Prescribed Authority dated 16-10-1977. Sri S. P. Kapoor filed an app-al against the order of-release under Section 22 of the aforesaid Act. The appeal remained pending until 13-4-1978, on which date, the appeal was got dismissed by Sri S. P. Kapoor as not pressed. Sri S. P. Kapoor had moved an application before the learned District Judge in his appeal on 13-4-1978 alleging that the shop in dispute had been allotted to respondent No. 3 by the Rent Control and Eviction Officer by an order dated 3-12-1977, and that he had ceased to have any connection with the shop since 4-12-1977. Meanwhile, the matter relating to the allotment of the shop proceeded before the Rent Control and Eviction Officer dismissed the petitioner's appli cation under Section 16 (1) (b) in the absence of the petitioner and by the same order allotted the shop to Sri Khurana. The petitioner moved an application for setting aside of this ex parte order. The order dated 28-9-1977 was there upon recalled. Subsequently by an order dated 3-12-1977, the Rent Control and Eviction Officer rejected the petitioner's application for the release of the shop and allotted it in favour of Sri Khurana, respondent No. 3. The petitioner thereafter filed two revisions against the aforesaid order dated 3-12-1977 which have been dismissed by the learned District Judge by an order dated 1-6-1978. The learned District Judge has held that the order passed by the Prescribed Authority dated 16-10-1977 was a nullity, having been passed after the initiation of proceedings for allotment. The learned District Judge has also held that the need of the petitioner for the shop in dispute was not bona fide and that consequently, her application was rightly rejected by the Rent Control and Eviction Officer. It is noteworthy that in the order passed by the Rent Control and Eviction Officer dated 3-12-1977 rejecting ths petitioner's application for release, there is no consideration or discussion regarding the claim of the petitioner that she bona fide required the shop in dispute. Learned counsel for the petitioner has submitted that the view of the Courts below that the order passed in favour of the petitioner under Section 21 of the Act by the Prescribed Authority releasing the shop in dispute in her favour is a nullity, is patently erroneous in law. The shop in dispute having been lawfully released in favour of the petitioner by the said order passed by the Prescribed Authority under Section 21, the Rent Control and Eviction Officer had no jurisdiction to allot it to respondent No. 3, or to refuse to release the same in favour of the petitioner. Learned counsel for the petitioner on the other hand urged that once intimation of vacancy was sent by Sri S. P. Kapoor and vacancy notified by the Rent Control and Eviction Officer, the Prescribed Authority ceased to have jurisdiction to deal with the matter under Section 21 of the aforesaid U. P. Act No. XIII of 1972. Having heard learned counsel for the parties, lam of opinion that the contention of the learned counsel for the petitioner is well founded and has to be accepted. The learned District Judge is of the view that once the jurisdiction of the Rent Control and Eviction Officer is invoked under Section 16 of the aforesaid Act, and the matter becomes pending before him, the Prescribed Authority would have no jurisdiction thereafter to proceed under Section 21 of the Act. I do not agree with this broad and sweeping statement of the law. There is no warrant for such a conclusion either on the plain language of Sections 21 and 16 of the aforesaid Act or even the scheme under lying the Act. Section 21 of the Act, in my judgment, is available so long as the tenant is holding on the to the building in question and is in lawful occupa tion thereof. The provisions of Section 21 of the Act are applicable against who may be described as a sitting tenant. The mere fact that the matter relating to declaration of vacancy and allotment of the building in question happens to be pending for adjudication before the Rent Control and Eviction Officer does not automatically deprive the Prescribed Authority of the jurisdic tion to deal with an application under Section 21 of the Act. The position would, however, be different if after final adjudication of vacancy, the building is allotted to some one. Section 21 will have no application in that contingency, for in that eventuality the continued occupation of the tenant would be unlaw ful and the tenant would be deemed to have ceased to occupy the building by virtue of Section 13 of the aforesaid Act which provides that after a building is allotted or released under Section 16, no person shall occupy the same, and if he does so in contravention of the order of allotment or release, he would be deemed to be an unauthorized occupant of such building. In such a case, it is obvious that there would be no question or necessity of a landlord seeking an order of eviction against a tenant under Section 21 of the aforesaid Act. Nor can the tenant be characterized, in that eventuality, as a "sitting tenant". The above being the true legal position of the law, as I have conceived, I proceed to apply it to the facts of the present case. It is established beyond any doubt that though the tenant is alleged to have sent an intimation to the Rent Control and Eviction Officer conveying his intention to leave the shop by 15-3- 1977, he continued to hold on to the shop right upto 4-12-1977. This fact is confirmed by his own application dated 13-4-1978 moved before the District Judge for the dismissal of his appeal under Section 22 of the Act as well as paragraph 4 of the counter-affidavit of respondent No. 3 filed in this case. Not only that, Sri S. P. Kapoor the tenant vehemently contested the application of the petitioner under Section 21 of the Act. Indeed from the chain of events, the conclusion is irresistible that Sri S. P. Kapoor was holding on to the shop until he had ensured that it passes on to respondent No. 3. It is only after h-3 had passed on the possession of shop to Sri Khurana that he moved the aforesaid application dated 13-4-1978 before the learned District Judge for getting his appeal dismissed as not press ed. It is, however, clear that the tenant Sri S. P. Kapoor was very much in occupation of the shop in dispute when the petitioner moved an appli cation under Section 21 of the Act notwithstanding- his declaration of intention that he would vacate the shop as far back as 15-3-1977. He was, therefore, a sitting tenant in occupation when the appeal under Section 21 was moved. It is clear that when the application under Section 21 of the Act was mo/ed, the proceedings for allotment were still pending adjudication. There had not been till then any final adjudication as regards the vacancy of the shop as well as its allotment or release. Under these circumstances, the Prescribed Authority was perfectly competent under Section 21 of the Act to take cognizance of the application of the petitioner under Section 21 of the Act and to dispose it of according to law. The Courts below have, therefore, fallen into a manifest error of law in ignoring the order of release passed by the Prescribed Authority under Section 21 of the Act as a nullity. In my view the order passed by the Prescribed Authority under Section 21 of the Act was a perfectly valid and legal order. The shop having been already released under Section 21 by the order dated 16-10- 1977, it could not thereafter be legally allotted to respondent No. 3. The order of allotment passed in favour of respondent No. 3, is, therefore, liable to be quashed. Learned counsel for the respondent placed reliance on a decision of this Court in the case of Or. Ashok Kumar v. K. C. Panwar and others 1979 Alld. R. C. 193. This case is clearly distinguishable. It does not support the broad prosecution of law canvassed by counsel for the respondent On the facts of that case, the learned Judge held that the order passed under Section 21 of the Act was a collusive order and the Prescribed Authority was justified on the facts of that case in making the order of release under Section 21 of the Act. It was further found in that case that vacancy had already occurred before the application under Section 21 of the Act was moved and that there was no question of the release of the accommodation under Section 21. It is obvious that if the tenant had vacated the shop earlier to the making of the application under Section 21, the Prescribed Authority had no jurisdiction to deal with the case. It would thus appear that the facts of that case are materially different from the facts of the present case. Furthermore even in that decision, it has been held that the application under Section 21 can be filed against a sitting tenant. In the present case, I have found that the application under Section 21 was moved against a sitting tenant who was then in lawful occupation of the shop in dispute. In view of what has been stated above, this petition succeeds and is allowed. The order passed by the learned District Judge, Ghazrabad dated 1-6-1978, and those passed by the Rent Control and Eviction Officer, Ghaziabad dated 3-12-1977 allotting the shop to respondent No. 3 and rejecting the petitioner's application for release are quashed. The parties will bear their own costs of this petition. The respondent No. 3, is, however, granted three month's time within which he will vacate the shop and hand over possession to the petitioner. .