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Smt. B.K. Bose and anr. Vs. Court of Prescribed Authority, Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 1225 of 1976
Judge
Reported inAIR1977All14
ActsUttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 21, 21(1), 21(2) and 43(2); Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3
AppellantSmt. B.K. Bose and anr.
RespondentCourt of Prescribed Authority, Allahabad and ors.
Appellant AdvocateDhruva Narain, Adv.
Respondent AdvocateStanding Counsel
DispositionWrit petition dismissed
Excerpt:
.....is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust for the objects of the trust. 2 and 3, for their personal occupation as well as the need for occupation by other members of their big families. it was further contended that if permission was secured under section 3 of the old act on a ground which was not covered by section 21 (1) or (2) of the new act, the eviction of the tenant from the building under tenancy could not be ordered under section 21 read with section 43 (2) (rr)..........u. p. act iii of 1947 had been obtained exclusively on the ground of the need for residence of the landlords' family exclusively or the order granting permission under that act did not contain a specific finding about the need of personal occupation by the landlords, perhaps different considerations would have applied but on the facts and the findings recorded in the instant case the impugned order cannot be said to suffer from any legal infirmity. it does not admit of any doubt that the orders passed under section 3 of u. p. act iii of 1947 were quasi judicial orders and had to be based on objective considerations. the applications for permission under section 3 of that act used to be decided on affidavits or other evidence of the parties and it is well settled that if an order is based.....
Judgment:

M.N. Shukla, J.

1. This writ petition challenges the order of the Prescribed Authority dated 2-7-1976 (Annexure 5 to the Writ Petition) passed under Section 21 read with Section 43 (2) (rr) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter to be referred to as the new Act).

2. Respondent No. 2 Narain Das and his son Bhagwan Das, who is respondent No. 3. were the joint owners of house No. 22, Lukerganj, Allahabad. They had obtained permission under Section 3 of U. P. Act III of 1947 (hereinafter referred to as the old Act) from the Rent Control and Eviction Officer by his order dated 30-8-1971 which was eventually confirmed by the State Government under Section 7-F of U. P. Act III of 1947 by its order dated 1-6-1972. The case of respondents Nos. 2 and 3 in brief was that they were refugees from Sindh and after partition they came to live in Gaya (Bihar) but later shifted to Allahabad and had been living in a rented house on a monthly rent of Rs. 300. They purchased the house in question on 25-9-1969 and the sale deed of the same was registered on 28-9-1969. The house was purchased for their personal use and occupation. The application under Section 3 of U, P. Act III of 1947 was made on the ground of personal need and it was alleged that the house was required for the residence of respondents Nos. 2 and 3 and their family. The allegations made in the application under Section 3 were that the family of respondents Nos. 2 and 3 consisted of Narain Das and his son Bhagwan Das, the mother of Narain Das viz. Smt. Chatur Devi, wives of Narain Das and Bhagwan Das and Sewak Ram (another son of Narain Das) and six sons and five daughters of Sewak and Bhagwan Das. Besides Daryana Mal, brother of Narain Das, his two sons out of whom Udho Das was married, his wife, and three daughters and five sons were also living with respondents Nos. 2 and 3. In this manner twentyseyen members comprised the family of respondents Nos. 2 and 3. The permission was accorded by the Rent Control and Eviction Officer and ultimately confirmed by the State Government on the finding that respondents Nos. 2 and 3 required the house in question for their own residence and that of their family and that the need of the said respondents was greater than that of the tenants. It appears that before proceedings could be taken for the actual ejectment of the tenants (who are petitioners in this writ petition) the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 was passed and respondents Nos. 2 and 3 made an application under Section 21 read with Section 43 (2) (rr) of the new Act on 2-2-1976 praying that the accommodation in dispute be released in favour of respondents Nos. 2 and 3 by the eviction of the present petitioners. The petitioners, however, raised an objection that the original permission granted by the Rent Control Authorities and confirmed by the State Government under Section 7-F of U. P. Act III of 1947 could not be validly executed under Section 21 of the new Act. The objection was overruled by the Prescribed Authority by its order dated 2-7-1976 which has been impugned in this writ petition.

3. Sri Jagdish Swarup, learned counsel for the petitioners contended that the permission originally obtained by respondents Nos. 2 and 3 was not obtained on any of the grounds specified under Sub-section (1) or Sub-section (2) of Section 21 of the new Act and therefore, the Prescribed Authority could order eviction of the tenants from the building under tenancy only after satisfying itself afresh as to the existence of the ground on which permission had been initially obtained. Section 3 of Act III of 1947 did not specify the grounds on which permission could be granted to a landlord for filing a suit of ejectment against a tenant if the grounds were other than those on which no permission was required for filing a suit. It was, therefore, common for the landlords to apply for permission on the ground of personal need such as residence of the landlord himself or members of his family or both. The old Act did not define the term 'family' though it contained the definition of the word 'landlord'.

4. The position is different under the Act of 1972, The relevant part of Section 21 of this Act reads:

'21. Proceedings for release of building under occupation of tenant---(1) The Prescribed Authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exist--(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust for the objects of the trust.....'

An analysis of the above provision indicates that the applications contemplated by it can be classified into four broad categories. An application, may be made for the eviction of a tenant from the building under his tenancy by a landlord for occupation by himself, or for occupation by any member of his family or for occupation by any person for whose benefit it is held by him or for occupation by himself and others falling in any of the remaining three categories. It is not difficult to conceive of a situation in which the landlord may not be requiring any accommodation under tenancy for occupation by him personally but only for a member of his family. It will be apparent that the essential prerequisite for passing en order under Section 21 (1) (a) of the new Act is the bona fide requirement of the building for occupation by either the landlord himself or any other person of the categories enumerated above, The case of a bona fide requirement falling into any of these three categories is sufficient to justify an order under Section 21 (1) (a) of the new Act. The legal considerations which would affect the decision on an impugned order would vary according as the case falls into one or other of these various categories. The instant case deals with the position in which the permission under Section 3 of the old Act was founded on two grounds, namely, the need of the landlords, respondents Nos. 2 and 3, for their personal occupation as well as the need for occupation by other members of their big families.

5. Sri Jagdish Swamp, learned counsel for the petitioners has chiefly relied on the definition of the term 'family' contained in Section 3 (g) of the new Act. It is to the following effect:

'family', in relation to a landlord or tenant of a building, means his or her-

(i) spouse,

(ii) male lineal descendants,

(iii) such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of male lineal descendant, as may have been normally residing with him or her, and includes in relation to a landlord, any female having a legal right of residence in that building.'

We have already mentioned in the earlier part of our judgment that the application under Section 3 of the old Act made in the instant case reveals that the family of respondents Nos. 2 and 3 was a very big one and comprised of as many as twenty seven members. It included not only the landlords themselves and their wives and children but also the families of the uncle of respondent No. 3 and brother of respondent No. 2. It was argued by Sri Jagdish Swarup that even though the scope of Section 3 of the old Act was comparatively untrammelled and there was nothing to restrict the connotation of the term 'family' under that Act, the term had been defined under the new Act and, therefore, permission could not be granted under Section 21 (1) (a) of this Act for occupation of the accommodation in dispute by a person who did not come within the definition of the term 'family' as contained in the new Act. It was further contended that if permission was secured under Section 3 of the old Act on a ground which was not covered by Section 21 (1) or (2) of the new Act, the eviction of the tenant from the building under tenancy could not be ordered under Section 21 read with Section 43 (2) (rr) of the new Act unless the Prescribed Authority satisfied itself afresh as to the existence of any of the grounds under Section 21 (1) or (2) of the new Act. In our opinion this argument is untenable. As we have already observed, any one of the grounds mentioned in Section 21 (1) (a) of the Act (which alone is relevant for the purposes of this case) is sufficient to sustain a final order passed under Section 3 of the old Act, and presented for execution under Section 43 (2) (rr) of the new Act. If an order granting permission under Section 3 of the old Act was based on more than one ground, some of which have ceased to be valid grounds for passing such orders under Section 21 (1) or (2) of the new Act, the non-existence of such grounds does not destroy the validity or executability of the permission originally granted. An order validly passed under Section 3 of the old Act and confirmed under Section 7-F of the same Act. remains unaffected by subsequent change of legislation in the shape of U. P. Act XIII of 1972. In the instant case the condition precedent for passing an order under Sub-section (1) (a) of Section 21 of the new Act is the same as that under Section 3 of U. P. III of 1947. We have already adverted to the categorical finding recorded in the earlier proceedings under U. P. Act III of 1947 to the -effect that the accommodation in question was bona fide required by respondents Nos. 2 and 3 (landlords) for their personal use. That condition still holds good and even that alone is sufficient to justify the passing of an order of eviction of the tenant under Section 21 (1) (a) of the new Act. That is a common factor which endures irrespective of the other bases of the previous order passed under Section 3 of U. P. Act III of 1947, which may be treated as redundant and may now be safely excluded from consideration. If the essential conditions of Section 21 (1) (a) of the new Act are satisfied, the order of eviction passed under Section 43 (2) (rr) of the new Act remains valid and legal. The only change which has been effected by the latter Act is in the quantitative content of the term 'family'. So long as the bona fide need of the landlords themselves for personal occupation of the building is concerned, that is a factor distinct from the requirement of occupation by other members of his family. The former which is- common both to an order under Section 3 of the old Act and Section 21 (1) (a) of the new Act, is sufficient to entitle the landlords to ask for execution under Section 43 (2) (rr) of the new Act. Therefore, the need of the family is not the decisive factor. What clinches the case in favour of respondents Nos. 2 and 3 is the fundamental finding of fact recorded by the Rent Control Authorities earlier to the effect that the accommodation was bona fide required for personal occupation by the landlords.

6. If the permission under Section 3 of U. P. Act III of 1947 had been obtained exclusively on the ground of the need for residence of the landlords' family exclusively or the order granting permission under that Act did not contain a specific finding about the need of personal occupation by the landlords, perhaps different considerations would have applied but on the facts and the findings recorded in the instant case the impugned order cannot be said to suffer from any legal infirmity. It does not admit of any doubt that the orders passed under Section 3 of U. P. Act III of 1947 were quasi judicial orders and had to be based on objective considerations. The applications for permission under Section 3 of that Act used to be decided on affidavits or other evidence of the parties and it is well settled that if an order is based on objective satisfaction of an authority, its validity remains unaffected by the rejection of other grounds, so long as it can be sustained on any one of the grounds on which it is based.

7. Section 43 (2) (rr) of the new Act runs as under:

'Repeal and Savings.-- (1) The United Provinces (Temporary) Control of Rent and Eviction Act, 1947 (U. P. Act No. III of 1947) is hereby repealed.

(2) Notwithstanding such repeal-

(rr) Where any permission referred to in Section 3 of the old Act has been obtained on any ground specified in Subsection (1) or Sub-section (2) of Section 21 and has become final, either before the commencement of this Act, or in accordance with the provisions of this subsection, after the commencement of this Act, whether or not a suit for the eviction of the tenant has been instituted, the landlord may apply to the prescribed authority for his eviction under Section 21, and thereupon the prescribed authority shall order the eviction of the tenant from the building under tenancy, and it shall not be necessary for prescribed authority to satisfy itself afresh as to the existence of any ground as aforesaid, and such order shall be final and shall not be open to appeal under Section 22......'

On reading the above provision along with Section 21 (1) (a) of the new Act it is manifest that in the instant case the permission under Section 3 of the old Act was obtained on one of the grounds specified in Section 21 (1) (a) of the new Act viz, that the building was 'bona fide' required for occupation by the landlords themselves. In other words, the main ground , on which permission was obtained under Section 3 of the old Act in the case before us survived under Sub-section (1) of Section 21 of the new Act and so Section 43 (2) (rr) of the new Act was fully attracted. Obviously the permission obtained under the earlier Act had become final and on the application of the landlords, made under Section 21 read with Section 43 (2) (rr) of the new Act the prescribed authority was bound to order eviction of the petitioners and it was not necessary for that authority to satisfy itself afresh as to the existence of the ground on which the permission had been initially obtained under U. P. Act III of 1947.

8. In view of this legal position we are of the opinion that respondents Nos. 2 and 3 are entitled to enforce under Section 43 (2) (rr) of the new Act the permission granted to them under Section 3 of U. P. Act III of 1947. The impugned order overruling the objection raised by the present petitioners is well founded.

9. In the result this writ petition is dismissed with costs. The stay order dated 2nd August, 1976 is vacated.


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