MOHAMMAD YUNUS Vs. THIRD ADDL DISTRICT JUDGE MIRZAPUR

JUDGEMENT

(1.) THIS is landlord's petition arising out of pro ceedings under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the new Act). The house in question is situate in the town of Mirzapur. It is a double-storied building, 3) 4th portion of which is in the tenancy of opposite parties Nos. 3 and 4. The house is waqf property of which the petitioner is a Mutwalli. On July 28,1971 the petitioner moved an ap plication under S. 3 of the U.P. Act III of 1947 for permission to file a suit for ejectment against the O.Ps. Nos. 3 and 4 on the ground that the bona fide requires it for his own use. During the pendency of this application the new Act came into force and the application was treated as an application under Section 21 of this Act and was disposed of as such. The opposite parties Nos. 3 and 4 contested that application on a number of grounds including that the application was legally not maintainable. The Prescribed Authority rejected the application and the pre sent petitioner filed an appeal under Section 22 of the new Act. The learned III Additional District Judge, Mirzapur arrived at the con clusion that the petitioner no doubt bona fide requires the building for his own use but the application was liable to be rejected because it was not verified according to the rule 15 (2) framed under the new Act and it was not addressed to the Prescribed Authority but was addressed to the Rent Control and Eviction Officer and the relief claimed was not brought in conformity with the requirements of the new Act. Accordingly the application was rejected and the present petition has been filed. The crucial point for consideration is whether the application under Section 3 of the old Act required to be amended under Section 43 (2) (h) before it could be treated as an application under Section 21 of the new Act and could be disposed of as such. Admittedly the proceedings in the instant case had started on an application under Section 3 of the old Act. That application was addressed to the Rent Control and Eviction Officer and it was prayed that permission to file a suit for eviction against the O. Ps. Nos. 3 and 4 may be ac corded. There is also no controversy that the said application was not verified. On the other hand an application under Section 21 of the new Act, has to be addresed to the Prescribed Authority and has to be verified in the manner prescribed by Rule 15(2) framed under this Act. The prayer has to be for release of the building in favour of the landlord. The learned counsel for the respondents has con tended that in view of Section 43 (2) (h) of the new Act the petitioner should have got his previous application amended within the period by addressing it to the Prescribed Authority, changing the prayer and verifying it in the manner required. As he failed to do so it could not be treated as an application under Section 21 and could not be disposed of as such. There is no substance in this ap plication because Section 43(2) (a) says: - "Any application or proceeding pending immediately before the commencement of this Act before the District Magistrate under Section 3 of the old Act shall stand transferred to the Prescribed Authority having jurisdiction and shall be deemed to be an ap plication or proceeding under Section 21 of this Act and shall be disposed of in accordance with the provisions of this Act." Obviously this provision creates a legal fiction by providing that an application under Section 3 of the old Act shall be deemed to be an application under Section 21 of the new Act and shall be disposed of as such. The meaning of the words 'deemed to be' has been the sub ject-matter of consideration in a number of cases. In East End Dwel ling Co. Ltd. v. Finsbury Borough Council 1952 A.C. 109, Lord Asquith of Bi-shopstone observed: "If you are bidden to treat an imaginary state of affairs as real, you must surely unless prohibited from doing so, also ima gine as real the consequences and incidents which, if the puta tive state of affairs had in fact existed, must inevitably have flowed from or accompanied it.....The statute says that you must imagine a certain state of affairs; it does not say that hav ing done so you must cause or permit your imagination to boggle when it comes to the inevitable corrollaries of that state of affairs." In Durban Lal and others v. Smt. Dhramvati A.I.R. 1957 Alld. 541 a Full Bench of this Court held that when a thing is 'deemed to be' something the only meaning possible is that whereas it is not in reality that some thing, the Act directs that it should be treated as if it were that thing. The same view was taken in the cases of the Commissioner of Income Tax, Bombay Presidency v. Bombay Trust Corporation Ltd. A.I.R. 1930 P.C. 54, Dattu Apparao Machalc and others v. D. G. Shendge A.I.R. 1968 Bom. 361 and State of Gujrat v. M/s. Raman lal and Co. A.I.R. 1965 Gujrat 60. In this view of the matter an application under Section 3 of the old Act pending at the commencement of the new Act will, for all practical purposes, be construed to be an application under Section 21 of the new Act and no amendment is needed. I am fortified in this view by the pro nouncements of this Court in two cases. In Munna Lal v. The District Judge, Mirzapur and others 1977 (U.P.) R.C.C. 250 it was held that by virtue of the pro-' vision of Section 43 (2) (a) of the new Act an application under Section 3 of the old Act becomes a full fledged application under Sec tion 21 of the new Act and is required to be decided under the new Act as an application under Section 21. An application filed under Section 3 of the old Act becomes a complete and competent applica tion under Section 21 of the new Act and has to be treated as a pro per and valid application under Section 21. It was further held that clause (h) of Section 43 (2) does not apply to such an application and rules 15 and 35 framed under the new Act are also not applicable. In Shri Ram v. Second Addl. District Judge, Meerut and others 1976(2) A.L.R. 434 the question arose whether an application under Section 3 of the old Act pending at the commencement of the new Act requires to be verified as prescribed rule 15(2). It was held that the language of this rule refers to the making of an application in present and not to applications which are already pending under the Act and which by virtue of the provisions of the new Act have been transferred to the Prescribed Authority. Even on merit Section 43 (2) (h) does not apply to an applica tion under. Section 3 of the old Act. It applies to suits or other pro ceedings relating to the recovery or determination or fixation of rent or of eviction from any building pending immediately before the commencement of the new Act. An application under Section 3 does not fall in any of these categories. Before the commencement of the Act it was an application for permission to file a suit for ejectment and not for eviction outright. After the commencement of the new Act it became an application for eviction by virtue of Sec tion 43 (2) (a). Therefore Section 43 (2) (h) cannot apply to it. It may further be stated that all the three defects pointed out were purely of procedural nature, on the basis of which the appli cation could not be thrown out. In this connection it will be of ad vantage to refer to the following observation of their Lordships of the Supreme Court in State of bunjab v. Shamlal Murari 1976 1 S.C.C. 719: "Procedural law is not to be tyrant but a servant not an obs truction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, though, procedural, will thwart fair hearing or prejudice doing of jus tice to parties, the rule is mandatory. But grammer apart, if the breach can be corrected without injury to a just disposal of the case, the court should not enthrone a regularity requirement into a dominant desideratum. After all Courts are to do justice, not to wreck this end product on the technicalities." It is thus clear that the learned IIIrd Addl. District Judge, Mirzapur committed manifest error of law by rejecting the application merely on the ground that it was not maintainable. In the result, the writ petition is allowed. The order dated October 30, 1876 passed by the IIIrd Additional District Judge is quashed and he is directed to dispose of the appeal afresh according to law. In the circumstances of this case the parties will bear their own costs. The case will be disposed of expeditiously as it has be come old.