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Sibte Hasan Vs. State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 6038 of 1973
Judge
Reported inAIR1974All86
ActsUttar Pradesh Control of Rent and Eviction Act, 1947 - Sections 3(2); Uttar Pradesh Control of Rent and Eviction (Amendment) Act, 1972 - Sections 43(2)
AppellantSibte Hasan
RespondentState of Uttar Pradesh and ors.
Appellant AdvocateN.L. Ganguly and ;Lalji Lal Srivastava, Advs.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
.....proceedings provided for by clauses (a) to (g) and not to revisional proceedings under clauses (m) to (p). for the reasons given the petitioner's contention that the order of the learned additional district judge is vitiated by reason of his failure to have ordered payment of compensation is rejected......the order of the rent control and eviction officer and allowed the landlord's application. the learned judge in the operative part of the order observed that the application filed by the landlord under section 3 of the old act which would be deemed to be one under section 21 of the act stood allowed. he allowed three months' time to the petitioner to make alternative arrangements and vacate the premises in question. it was directed that the order allowing the application would become effective after three months from the date thereof and the landlord would be entitled to recover possession of the premises in question by evicting the petitioner.2. learned counsel for the petitioner has contended that since the revision was decided by the learned additional district judge after the.....
Judgment:

Yashoda Nandan, J.

1. This is a petition by the tenant in proceedings initiated under Section 3 of the U. P. Control of Rent and Eviction Act (U. P. Act No. III of 1947) -- hereinafter referred to as the Old Act. Opposite party No. 3 Abdul Ghafoor is the landlord of the premises in dispute and the petitioner happened to be tenant thereof. Opposite Party No. 3 filed an application under Section 3 of the Old Act for permission tofile a suit for ejectment of the petitioner from the premises demised to him in which he was carrying on business in medicines in the Unani Form. The Rent Control and Eviction Officer rejected the application of the landlord on the ground that his need was not genuine and bona fide. He filed a revision against the order of the Rent Control and Eviction Officer under Section 3 (2) of the Old Act. While the revision was pending before the Commissioner, U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act of 1972 -- hereinafter referred to as the Act -- came into force. As a result of the coming into force of this Act, by reason of Section 43 Sub-section (2) Clause (m) thereof, the revision stood transferred to the Additional District Judge. The learned Additional District Judge, after making a comparison of the needs of the landlord and the petitioner-tenant, came to the conclusion that the need of the landlord was genuine and bona fide, and was superior to that of the petitioner. The learned Additional District Judge, in the result, allowed the revision, set aside the order of the Rent Control and Eviction Officer and allowed the landlord's application. The learned Judge in the operative part of the order observed that the application filed by the landlord under Section 3 of the Old Act which would be deemed to be one under Section 21 of the Act stood allowed. He allowed three months' time to the petitioner to make alternative arrangements and vacate the premises in question. It was directed that the order allowing the application would become effective after three months from the date thereof and the landlord would be entitled to recover possession of the premises in question by evicting the petitioner.

2. Learned counsel for the petitioner has contended that since the revision was decided by the learned Additional District Judge after the coming into force of the Act, though the proceedings had initially been started under Section 3 of the Old Act, he was bound to give effect to the substantive provisions of the new Act governing the relationship between the landlord and tenant. It was urged that the provisions of Section 21 of the Act should have been taken into account by the learned Additional District Judge while deciding the revision and he should have awarded compensation to the petitioner as required by the second proviso of Section 21 (1). There is, in our opinion, no force in this contention. The proceedings were started when the Old Act was operative and effective. If the Act had come into force while the application was pending before the District Magistrate, undoubtedly, by reason of Section 43 (2) (a) of the Act, it would have stood transferred to the prescribed authority having jurisdiction, would have been deemed to be an application for proceedings under Section 21 of the Act and would have been required to be disposed of in accordance with the provisions of the Act. No such situation, however, arose since the original proceedings had already been concluded beforethe District Magistrate before the date when the Act came into force. Clause (m) of Subsection (2) of Section 43 of the Act merely provides that the forum of the revision would stand altered from that of the Commissioner to that of the District Judge. The mere fact that the revision stood transferred by operation of law did not result in any alteration in the power that is required to be exercised by the District Judge tinder Section 43 (2) (m) of the Act. There are weighty reasons indicating that a revision transferred to the District Judge under Section 43 (2) (m) of the Act arising out of proceedings under Section 3 of the Old Act must be decided on considerations only relevant to the Old Act.

3. Firstly it is noticeable that while Clause (a) of Section 43 (2) provides that an application under Section 3 of the Old Act pending before the District Magistrate on the date when the Act came into force shall stand transferred to the prescribed authority having jurisdiction and be deemed to be an application under Section 21 of the Act, it is not stated in Clause (m) that the revision under Section 3 (2) of the Old Act transferred to the District Judge would be decided as a revision arising out of an application under Section 21 of the Act. Moreover, under the Act there is no question of grant of permission to the landlord to institute a suit for eviction of the tenant, yet we find that Clause (r) of Section 43 (2) as it originally stood contemplated the institution of suit on the basis of permissions granted under Clause (m) of Section 43 (2). This shows that the revision contemplated by Clause (m) remains simply a revision against an order under Section 3 of the Old Act in which permission to sue for eviction of a tenant may be granted, though the forum is altered. No doubt after the amendment in Clause (r) in Section 43 (2), by U. P. Act No. 37 of 1972 the right to institute a suit for eviction of a tenant on the basis of a permission obtained under Section 3 of the Old Act or under Clause (m) of Sub-section (2) of Section 43 of the new Act was taken away and it was provided by Clause (rr) that if the permission is on a ground mentioned in Section 21, the landlord may apply to the prescribed authority for his eviction under Section 21 and thereupon the prescribed authority shall order his eviction, the amendment by U. P. Act No. 37 of 1972 has only a limited impact on pending revisions under Clause (m). Since no remedy has been left open for enforcing a permission for eviction of a tenant granted on grounds other than those contemplated by Section 21 (1) and (2), the revisional authority will refuse to grant permission if it was sought on grounds not covered by Section 21 of the Act on the principle that no Court or authority will pass an infructuous and unenforceable order. If, however, the application under Section 3 of the Old Act was on a ground covered by Section 21 of the Act, the revision under Section 43 (2) (m) will still be decided as a revision would have been by the Commissioner under Section 3 (2) of the Old Act and in case permission is granted, the landlord has a right under Section 43 (2) (rr) to move the prescribed authority on the basis of the permission for an order under Section 21 of the Act. When this is done the permission granted by the District Judge for permission to institute a suit for eviction of the tenant is substituted by an order for eviction under Section 21 of the Act enforceable under Section 23 thereof. We are fortified in our conclusion by yet another consideration. If an application under Section 3 of the old Act had been decided by the District Magistrate before the coming into force of the Act and the revision pending before the Commissioner stands transferred to the District Judge, there is unlikely to be any material before him on the basis of which he can award compensation to the tenant because at the time when the application was made there existed no provision for award of compensation. The Act provides no method by which at the revisional stage the parties may amend their pleadings and lead additional evidence. Clause (h) of Section 43 (2) of the Act occurs immediately after clauses (a) to (g) all of which are concerned only with either suits or original proceedings under the Old Act. Clauses (m) to (o) dealing with revisions under the Old Act come after Clause (h). If the legislature had contemplated amendment of pleadings at the revisional stages, one would have expected Clause (h) to have been placed subsequent to Clause (o). Taking into account the context in which Clause (h) is placed, we have no doubt that it applies only to suits and proceedings provided for by Clauses (a) to (g) and not to revisional proceedings under Clauses (m) to (p). For the reasons given the petitioner's contention that the order of the learned Additional District Judge is vitiated by reason of his failure to have ordered payment of compensation is rejected.

4. It was further contended by the learned counsel for the petitioner that the learned Additional District Judge had not properly considered the relative claims of the parties. The submission raises a question of fact which has been decided by two authorities below. It involves no question of jurisdiction.

5. Before parting with this case, we consider it necessary to observe that the operative order passed by the learned Additional District Judge shows a slight confusion With regard to the law applicable. He has observed that the application which he was allowing would be deemed to be one under Section 21 of the Act. This observation is obviously incorrect since the application he allowed never lost its character as one under Section 3 of the Old Act. It was contended by the learned counsel that the observation of the learned Additional District Judge to the effect that the application which was being allowed by him would be deemed to be an application under Section 21 of the Act gives rise to a situation in which the landlord might straightway take recourse to Section 23 of the Act. In our opinion, there is no justification for this apprehension. After the amendment of Section 43 (2) by U. P. Civil Laws Amendment Act, 1972, the order can be given, effect to only under Section 43 (2) (rr) of the Act. On the basis of the order of the learned Additional District Judge, the landlord shall be required to apply to the prescribed authority under Section 21 of the Act and having obtained an appropriate order shall have to move, if necessary, for proceedings under Section 23 of the Act. The observation to which reference has been made above does not to our minds in any manner affect the decision of the learned Additional District Judge on merits.

6. This petition, in our opinion, lacks force and is hereby rejected.


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