J P SINGH Vs. R S OJHA

JUDGEMENT

(1.) Issue raised in present writ petition regarding order dated 16. 10. 2008 passed by Rent Control and Eviction Officer, Allahabad in Rent Case No. 23 of 2008. The contention raised in present writ petition is that petitioner, who is an applicant for allotment of accommodation in dispute is that respondent No. 3 is not landlord, as such, application for release itself was not maintainable in view of definition of landlord as provided under Section 3 (j) of the Act. The accommodation in dispute is a nazul land No. 27, Civil Station, Allahabad. Lease has already expired about sometimes in 1950 and area of nazul plot is about one acre i. e. 4418 sq. yard. There are six tenants in the building including a church and they are living separately in their respective portions with their families since last several decades and regularly paying rent to respondent No. 2. On the basis of registered agreement to sale on 5. 12. 2006 in favour of respondent No. 3 and one Dr. A. K. Bansal, it was agreed to sale the said property. One of the tenant in portion agreed to give possession of his portion reasons best know to him. A compromise was arrived in certain terms and conditions to handover the possession of the said portion. When petitioner came to know he moved an application for allotment. Vacancy was declared and subsequently an order of release was passed. It has been submitted that in view of facts and circumstances of present case, question for consideration before this Court is that whether respondent No. 2 can be treated to be a landlord on the basis of agreement of nazul land, which lease has already expired. Further question will be that whether application filed for release of said portion of accommodation itself was maintainable, authorising a person to realize the rent on the basis of agreement, whether he can be treated to be a landlord in the facts of the present case. Petitioner has placed reliance upon a judgement of Full Bench reported in 1981 AIR (Supreme Court) 1113 M. M. Quasim Vs. Manohar Lal Sharma. In support of aforesaid contention learned counsel for petitioner submits whether it can be treated to be building, which is reasonably and in good faith required by landlord for his own occupation. The landlord alone can seek eviction on the ground of his personal requirement. The person claiming possession for personal requirement must be such a landlord who wants possession for his own occupation. The expression landlord could, therefore, mean a person who is the owner of the building and has a right to remain in occupation and actual possession of the building to the exclusion of everyone else. A rent collector or an agent is not entitled to occupy the house in his own right. Even if such a person be a lessor and, therefore, a landlord within the expanded inclusive definition of the expression landlord, nonetheless he cannot seek to evict the tenant on the ground that he wants to personally occupy the house. He cannot claim such a right against a real owner and as a necessary corollary he cannot seek to evict the tenant on the ground that he wants possession of the premises for his own occupation. This contention has also been raised in view of Judgement rendered in Smt. Ved Rani Diwan and another Vs. VIIIth Additional District Judge, Ghaziabad and others reported in 1996 (2), Allahabad Rent Cases, 14. It has been submitted that a person authorised to realise rent, although is taken to be a 'landlord' but only for purposes of realising rent such person has no right to occupy building let out to tenant in his own right as landlord. In Writ Petition No. 6272 of 1975 E. E Dayal Vs. Smt. Phool Mani Dayal and others decided on 30th August, 1976, this Court has held that mere fact that he was paying rent which was being collected by the respondent on behalf of the Trust does not mean that he has become the owner of the premises in dispute. The counsel for respondents has also cited a decision reported in Allahabad Rent Cases 1995 (2), page- 1 Vijay Kumar Sonkar Vs. Incharge District Judge and others and has submitted that petitioner being a prospective allottee has got no right to contest the release application. He has also placed reliance upon judgement reported in Allahabad Rent Cases 1997 (1), 590 Dev Raj Singh Chauhan Vs. Ist Additional District Judge, Ghaziabad and others and has held that petitioner being prospective allottee has got no right to challenge the order of vacancy. Further relying upon a judgement of this Court reported in 1986 (12) ALR, 113 Talib Husain and another Vs. Ist Additional District Judge, Nainital and others. The Full Bench of this Court has interpreted Rule 13 (4) and has held that prospective allottee has got no right to file objections and contest the release application. These are the question raised before this Court by respective parties are such that it needs consideration in the facts and circumstances of the case that whether being a nazul property of which lease has already expired, respondent No. 2 can execute an agreement in favour of respondent No. 3 and respondent. 3 treating him to be a landlord exclusively can file an application for release of the accommodation in his favour. In view of aforesaid fact and submissions made on behalf of parties, these are the questions to be decided by this Court in the present facts and circumstances that whether application filed by respondent no. 3 for release of accommodation treating him as landlord of the property of which lease has already expired can maintain the application treating him to be landlord only the basis of agreement. In such situation, notices are required to be issued to the respondents. Sri Rahul Sripat, Advocate, accepted notice on behalf of respondent No. 3. Issue notice to respondent no. 2. Steps be taken within a period of three weeks by registered post. Respondents may file counter affidavit within a period of one month. Petitioner will have three weeks thereafter to file rejoinder affidavit. List this petition immediately after expiry of aforesaid period. In the meantime, it is provided that respondent no. 2 will not change the nature of property in question. .