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Badshah Ali Vs. Commissioner Lucknow Division and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 6 of 1975
Judge
Reported inAIR1976All403
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 7A(1) and 43(2); Uttar Pradesh Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 - Sections 43(2)
AppellantBadshah Ali
RespondentCommissioner Lucknow Division and ors.
DispositionAppeal dismissed
Excerpt:
.....by any error of law. it clearly fell within the purview of the clause 'an order requiring any accommodation. clause (t) of sub-section (2) of section 43 provides that- any decision of the district magistrate, the prescribed authority, the district judge, the commissioner or the state government under the foregoing clauses may be enforced, whenever necessary, in like manner as if it were an order of the competent authority under the corresponding provisions of this act. ' clearly, decision of a revision by the commissioner is within the purview of clause (t). 7. clause (t) provides for enforcement of such a decision in a manner 'as if it were' an order of the competent authority under the corresponding provision of this act. the fiction goes on to the provide that it will be enforced..........act.'6. this provision deals with decisions of the stated authorities made 'under the foregoing clauses'. clause (h) provides any revision pending immediately before the commencement of this act before the commissioner under sub-section (4) of section 7-a of the old act shall be decided by him, and his order thereon shall be final.' clearly, decision of a revision by the commissioner is within the purview of clause (t).7. clause (t) provides for enforcement of such a decision in a manner 'as if it were' an order of the competent authority under the corresponding provision of this act. the phrase 'as if it were' by a fiction makes the decision of the commissioner, an order of the competent authority under the new act. the fiction goes on to the provide that it will be enforced in like.....
Judgment:

Satish Chandra, J.

1. One Zulfikhar Hussain was the tenant of the accommodation in dispute. Fasih Uddin, respondent No. 3, the landlord applied for and obtained permission under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 for filing a suit for the ejectment of the tenant. The permission was granted on the ground that the need of the landlord for using the accommodation for his personal purposes was genuine. This permission was granted on 20th November, 1959. The landlord, however, did not file any suit; but it appears that after some years the tenant vacated the house whereafter Badshah All, the present appellant, came in possession of the house. He, on 15th July 1969, moved an application before the Rent Control and Eviction Officer for allotment of the house in question in his favour. He supplemented this application by another one filed on 5th August, 1969. In these proceedings the erstwhile tenant Zulfikhar Husain filed an application intimating that he vacated the premises in dispute in May, 1966- The landlord opposed the application for allotment. On 7th April, 1971 the Additional District Magistrate (Executive) rejected the application for allotment on the ground that since the need of the landlord for his personal use of the house in question was held to begenuine there was no case for allotment of the same in favour of the appellant.

2. Subsequently, the landlord moved an application under Section 7-A(1) of the U. P. (Temporary) Control of Rent and Eviction Act for the eviction of Badshah Ali, the present appellant, from the disputed accommodation. The appellant filed objections which were upheld by the Rent Control and Eviction Officer by an order dated 5-5-1972. The landlord went up in revision. The Commissioner acting under Section 7-A(4) of the Act allowed the revision and directed the eviction of the appellant. Aggrieved, the appellant came to this Court by way of a writ petition under Article 226 of the Constitution, which was dismissed. Hence this appeal.

3. The first point urged by the learned counsel for the appellant is that the finding that the appellant was a trespasser is manifestly erroneous in law. The finding apparently is on a question of fact. The appellant does not have any documentary evidence in his possession to sustain the plea that he is a tenant of the accommodation in dispute. There are no rent receipts in his favour. He relies on his own admission contained in the applications and the affidavits filed in support thereof. He also relies upon some letters written by him to the landlord. These are admissions by him in his own favour and it cannot be held that the authorities below committed any error of law in not placing reliance on these documents or the further fact that the landlord did not institute any suit for eviction of Zulfikhar Hussain in spite of having obtained permission. The matter was considered by the Commissioner. It has also been discussed by the learned single Judge and we are not satisfied that the finding that the appellant was a trespasser, who had been inducted by the erstwhile tenant, is vitiated by any error of law.

4. The second point urged by learned counsel was that Section 7-A(1) was not applicable to the facts of the present case. Section 7-A(1) applies in several contingencies mentioned therein, one of them being-....... .Where an order requiringany accommodation to* be let or not to be let has been duly passed under Sub-section (2) of Section 7 ..........'

In the present case the appellant applied for allotment under Section 7 (2) of the old Act. The Rent Control and Eviction Officer dismissed the application on the ground that the need of the landlord for his own residence was genuine and so the accommodation cannot be allotted to the appellant. This, in our view, was an order within the purview of Section 7 (2). Its effect was a direction to the landlord not to let it out. It clearly fell within the purview of the clause 'an order requiring any accommodation...... not to belet ...... passed under Sub-section (2) ofSection 7' occurring in Section 7-A(1) of the Act. In this view, Section 7-A(1) was attracted.

5. The third point urged by learned counsel was that the order passed by the Commissioner could not be enforced under the U.P. Act No. 13 of 1972. Section 43 of. this Act lays down the repeals and savings. Clause (t) of Sub-section (2) of Section 43 provides that-

'any decision of the District Magistrate, the Prescribed Authority, the District Judge, the Commissioner or the State Government under the foregoing clauses may be enforced, whenever necessary, in like manner as if it were an order of the competent authority under the corresponding provisions of this Act.'

6. This provision deals with decisions of the stated authorities made 'under the foregoing clauses'. Clause (h) provides any revision pending immediately before the commencement of this Act before the Commissioner under Sub-section (4) of Section 7-A of the old Act shall be decided by him, and his order thereon shall be final.' Clearly, decision of a revision by the Commissioner is within the purview of Clause (t).

7. Clause (t) provides for enforcement of such a decision in a manner 'as if it were' an order of the competent authority under the corresponding provision of this Act. The phrase 'as if it were' by a fiction makes the decision of the Commissioner, an order of the competent authority under the new Act. The fiction goes on to the provide that it will be enforced in like manner. Since this Clause, by a fiction, makes the decision of the authorities under the old Act to be a decision of the competent authority under the new Act, it is not permissible to scrutinise the decision to see whether it in fact could be an order of the competent authority under the new Act. The provision does not contemplate that the order must have been based on grounds on which alone the competent authority under the new Act could pass a similar order.

8. This interpretation is reinforced by other provision of Section 43. For instance, Clause (a) of Sub-section (2) provides for applications under Section 3 of the old Act pending before the District Magistrate. They are to stand transferred to the Prescribed Authority and are to be disposed of in accordance with Section 21. Similarly, under Clause (b) proceedings pending before the District Magistrate under Section 7 or rule 6 of the old Act are to be disposed of by him in accordance with the provisions of sections 16 and 17 of this Act. If the Legislature intended that Clause (t) was to apply only if the decisions under the old Act was such that it fulfilled the conditions of the corresponding provisions of the new Act, it would have used language like Clauses (a) and (b). Clause (t) on the other hand contents itself by merely providing for the enforcement or execution of the order passed under the old Act in accordance with the enforcement machinery provided for the corresponding provision of the new Act.

9. Section 16 (4) of the new Act provides for eviction of unauthorised occupants. This is a provision corresponding to Section 7-A of the old Act. An order passed under Section 7-A of the old Act could be enforced or executed in accordance with the machinery provided for enforcing an order under Section 16 (4) of the new Act. It is necessary that an order under Section 7-A must be such as to fulfil the conditions laid down by Section 16 (4) for the making of an order of eviction thereunder.

10. We see no substance in this submission.

11. It was also argued that the notice issued under Section 7-A(1), Annexure 3 to the writ petition, did not give the details or particulars of the order of which a breach is alleged to have been committed by the appellant. No such objection was taken by the appellant before the authorities below. He participated in the proceedings and took all possible pleas and objections before them. We are not satisfied that the appellant has suffered any material prejudice because of this defect in the notice.

12. In the result, the appeal has no substance and is accordingly dismissed with costs.


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