Sarju Devi v. Prescribed Authority, Kanpur — 1976 DIGILAW 711 (ALL)

JUDGMENT D.M. Chandrashekhar, R.M. Sahai, JJ. 1. IN this petition under Article 226 of the Constitution, the petitioners have prayed for quashing the order of the Prescribed Authority under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (hereinafter referred to as the Act), and for issue of a writ in the nature of mandamus directing the Prescribed Authority to pass an order putting the petitioners in possession of a house in Civil Lines, Kanpur (here in after referred to as the suit house). 2. MOST of the material facts aire not in dispute. Petitioner-1 is the widow of Lala Jamuna Prasad, and petitioner-2, Govind Prasad, and Shiv Prasad and Anandi Prasad are their sons. Petitioners-3 and 4 are the widow and the daughter respectively of late Lala Devi Prasad. The petitioners and Shri Prasad and Anandi Prasad (here in after referred to as the landlords) were the co-owners of the suit house and they had let it to respondent-2, Swadeshi Cotton Mills Co. Ltd., (hereinafter referred to as the tenant) which has been using it as a Guest House for accommodating its officers and guests. The landlords had made an application under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, (hereinafter referred to as the Old Act) for grant of permission to file a suit for eviction of the tenant. The Rent Control and Eviction Officer had, by his order dated 20-7-1971, declined to grant such permission and dismissed that application. 3. IN revision, the Commissioner held that the need of the landlords was genuine and pressing and outweighed the need of the tenant. By his order dated 5-7-1972, he reversed the order of the Rent Control and Eviction Officer and granted permission to the landlords to file a suit. The tenant's representation to the State Government under Section 7-F of the Old Act against the order of the Commissioner, was dimissed by State Government by its order dated 14-11-1972. 4. THEREAFTER the landlords filed on 14-12-1972 an application under Section 21 read with clause (rr) of subsection (2) of Section 43 of the Act before the Prescribed Authority for eviction of the tenant from the suit house. During the pendency of that application the tenant filed Civil Misc. Writ No. 398 of 1973 impugning the orders of the aforesaid Commissioner and the State Government. During the pendency of that application the tenant filed Civil Misc. Writ No. 398 of 1973 impugning the orders of the aforesaid Commissioner and the State Government. The tenant has claimed to have purchased l/8th share of Shiv Prasad and l/8th share of Anandi Prasad in the suit house under two registered sale deeds dated 29-5-1973 and 4-7-1973. In the writ petition it was urged for the tenant that the eviction proceedings under Section 21 of the Act were not maintainable as the tenant had since become a co-owner of the suit house, having purchased one fourth share therein. K. N. Singh, J., while dismissing the writ petition by his order dated 18-10-1973, observed that it was not necessary to express any opinion on the above contention and that it would be open to the tenant to raise that contention before the Prescribed Authority which might consider the same and decide it according to law. 5. IN the proceedings before the Prescribed Authority the tenant raised the aforesaid contention which found favour with that Authority which observed as follows in its order dated 29-11-1975. "which particular portion of the house the opposite party, the tenant, should get and which particular portion the landlord should get, can be decided only when the house in question is partitioned. Before the present application is decided, actual partition is necessary. Until then any order would be purposeless." The Prescribed Authority ordered the landlords' application to be consigned to the records to await partition of the suit house by a decree of the Civil Court. 6. IN this petition, Sri S.N. Kacker, learned counsel for the petitioners, contended that under clause (rr) of subsection (2) of Section 43 of the Act, the proceedings before the Prescribed Authority were merely in the nature of execution proceedings and that in view of the earlier order of the Commissioner granting permission under Section 3 of the Old Act, the Prescribed Authority was bound to pass an order for eviction of the tenant from the suit house. Sri Kacker maintained that by not making an order for the eviction of the tenant the Prescribed Authority had failed to exercise its jurisdiction. Sri Kacker maintained that by not making an order for the eviction of the tenant the Prescribed Authority had failed to exercise its jurisdiction. It was also contended by Sri Kacker that the Prescribed Authority had not gone into the questions whether the landlords constituted a co-parcenary, whether Shiv Prasad and Anandi Prasad could sell their undivided shares in the suit house and whether the tenant had acquired a valid title to one-fourth share in the suit house. Sri Kacker argued that even if the tenant had acquired a valid title to one-fourth share in the suit house, the landlords' right to obtain eviction of the tenant could not be defeated by the tenant purchasing a share in the suit house during the pendency of the proceedings before the Prescribed Authority, that the only course open to the Prescribed Authority was to pass an order for eviction and that it (the Prescribed Authority) was not right in consigning the landlords' application to the records to await partition of the suit house by the decree of a civil court. On the other hand, Sri Shanti Bhushan, learned counsel for the tenant, contended that after the tenant purchased one-fourth share in the suit house it (the tenant) became a co-owner of that house, that thereafter it was no longer open to the petitioners who are only some of the co-owners of the suit house, to continue the application for eviction of the tenant who had also become a co-owner, that the petitioners had to file a suit for partition of the suit house and that it was only after the suit house was partitioned by metes and bounds the petitioners could ask for eviction of the tenant from that portion of the suit house that may be allotted to their share in such partition. It was also contended by Sri Shanti Bhushan that Rule 15 of the Rules framed under the Act which requires that all the landlords who are co-sharers of a house should join in an application under Section 21 of the Act, would show that some of the co-owners of a house cannot maintain an application for eviction. 7. IT is not the case of either of the parties that the tenancy of the suit house could be extinguished by the tenant purchasing a share in that house. 7. IT is not the case of either of the parties that the tenancy of the suit house could be extinguished by the tenant purchasing a share in that house. Clause (d) of Section 1U of the Transfer of Property Act (hereinafter referred to as the T. P. Act) provides that a lease of an immovable property is determined where the interests of the lessee and the lessor in the whole of the property becomes vested at the same time in one person in the same right. In Badri Narain Jha v. Rameshwar Dayal Singh, AIR 1951 SC 186 , Mahajan, J. (as he then was), who spoke for the court, explained the legal position thus at page 188 : "If the lessor purchases the lessee's interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchases only a part of the lessor's interest. In such a case the leasehold and the reversion cannot be said to coincide.'' 8. SRI Shanti Bhushan is right in his submission that under the general law all the co-owners should join in a suit for eviction of the tenant and that it is not open to some of the co-owners to bring a suit for eviction of the tenant unless the remaining co-lessors have authorised the former to bring the suit for eviction. In K. P. Kanna Pisharody v. V. M. Narayanan, ILR 3 Mad. 234 a Division Bench of the Mardras High Court held that unless where by a special provision of law co-owners are permitted to sue, through some or one of their members, all the co-owners must join in a suit to recover that property. 9. IN Balkrishna v. Moro, ILR 21 Bombay 154 a Division Bench of the Bombay High Court observed that it is the settled law that a co-sharer who is a manager, even with the consent of his co-sharers, cannot maintain a suit by himself and in his own name to eject a tenant. 10. 9. IN Balkrishna v. Moro, ILR 21 Bombay 154 a Division Bench of the Bombay High Court observed that it is the settled law that a co-sharer who is a manager, even with the consent of his co-sharers, cannot maintain a suit by himself and in his own name to eject a tenant. 10. IN Nanalal Girdharlal v. Gulamnabi Jamalbhai, AIR 1973 Guj.131, a Full Bench of the Gujrat High Court held that all the co-owners must join in a suit to recover possession of a property from a tenant unless one or some co-owners are permitted by some special provision of law to bring suit. Ordinarily it is not open to the lessors to break the integrity of a contract of lease and to bring a suit for possession of a portion of the demised premises. In B. P. Pathak v. Dr. Riyazuddin, AIR 1976 MP 55 , a Division Bench of the Madhya Pradesh High Court observed thus : "It is settled law that in the absence of a specific provision in the statute, the tenancy cannot be split up by one of the parties without the consent of the other. The court or the Rent Controlling Authority also cannot split up the tenancy. The lessee can be ejected from the whole of the demised property or not at all." 11. SECTION 21 of the Act makes a departure from the general rule that the integrity of a contract of tenancy cannot be broken. Sub-section (1) of SECTION 21 of the Act provides that the Prescribed Authority may, on an application by a landlord, order the eviction of a tenant from the building under tenancy or any specified part thereof if it (the Prescribed Authority) is satisfied that any of the grounds enumerated in clauses (a) and (b) of that sub-section exist. Sub-SECTION (2) of Sec. 21 of the Act empowers the Prescribed Authority to make an order for eviction of a tenant from a portion of the land appurtenant to the building under tenancy if it (the Prescribed Authority) is satisfied that the land is required for construction of one or more new buildings or for dividing it into several plots with a view to the sale thereof for purposes of construction of new buildings. 12. 12. ALL the co-owners of the suit house including Shiv Prasad and Anandi Prasad had joined in making the application under Section 21 read with clause (rr) of Section 43(2) of the Act. Hence that application, when it was made, did not suffer from any infirmity of all the co-owners not joining in making the application. The next question is whether the proceedings before the Prescribed Authority could not be continued in view of the claim made by the tenant that it had purchased one-fourth share-therein and had become a co-owner, 13. SRI Kacker is right in his criticism of the Prescribed Authority that it should have examined the tenant's claim of having purchased one-fourth share in the suit house and should have gone into the questions whether the landlords constituted a Hindu joint family, whether or not the suit house was a joint family property and in case the suit house was a joint family property, whether Shiv Prasad and Anandi Prasad could alienate their undivided interests therein under the School of Hindu Law by which they were governed. 14. EVEN if it should be established that the tenant had acquired one-fourth share in the suit house, we do not sec how the proceedings before the prescribed Authority would become incompetent. So long as the tenancy is not extinguished by merger of the interest of the landlord and that of the tenant in the entire demised premises, the tenant does not by reason of his purchasing a share of the landlords' interest, cease to be a tenant. It follows that he does not become a landlord as the same person cannot, as pointed out by the Supreme Court in Badri Narain's case (supra), at the same time be both a landlord and a tenant. Hence the proceedings before the Prescribed Authority had to be continued even if it was established that the tenant had purchased one-fourth share of the landlords in the suit house and had become a co-owner. Hence the proceedings before the Prescribed Authority had to be continued even if it was established that the tenant had purchased one-fourth share of the landlords in the suit house and had become a co-owner. Even so, Sri Shanti Bhushan contended that when the tenant had become a co-owner of the suit house, the Prescribed Authority cannot evict it (the tenant) from the entire house nor is it possible for the Prescribed Authority to determine until a partition by metes and bound, is effected by a civil court which portion of the house the landlords are entitled to get possession and which portion the tenant is entitled to retain possession. 15. AS stated earlier, the rival contention of Sri Kacker was that in view of clause (rr) of Section 43(2), the proceedings before the Prescribed Authority are only in the nature of execution proceedings and that the only order that the Prescribed Authority can pass is to evict the tenant from the entire suit house. CI. (rr) of Sec. 43(2) of the Act reads ; "(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 sub-section, after the commencement of this Act, and a suit for the eviction of the tenant has not 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 the 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 u/Sec. 22." It is not necessary for the purpose of this case to decide whether or not the proceedings under clause (rr) of Section 43(2) of the Act are merely in the nature of execution proceedings. But it is clear that where a landlord has already obtained permission under Section 3 of the Old Act to bring a suit for eviction, the Prescribed Authority cannot again go into the question as to the bona fide requirement of the landlord to occupy the house under tenancy. But it is clear that where a landlord has already obtained permission under Section 3 of the Old Act to bring a suit for eviction, the Prescribed Authority cannot again go into the question as to the bona fide requirement of the landlord to occupy the house under tenancy. Even if the Prescribed Authority takes into account the events that have happened subsequent to the grant of permission under Section 3 of the Old Act, that can only be for the limited purpose of deciding whether the order for eviction should be made in respect of the entire house or only a portion of the house. 16. WE are unable to accept the contention of Sri Kacker that if a landlord has obtained permission under Section 3 of the Old Act to bring a suit for eviction of the tenant on any ground specified in sub-section (I) or (2) of Section 21, the Prescribed Authority is bound to evict the tenant from the entire house and cannot restrict the eviction to a portion of the house. When permission was granted under Section 3 of the Old Act, what was decided was that the need of the landlords to occupy the house was genuine. But the authority granting such permission did not consider, and was not required to consider, whether the landlord should get possession of the entire suit house or a portion thereof. Under Section 21 of the present Act when the Prescribed Authority holds that the landlord bona fide requires the premises for his own occupation, it (the Prescribed Authority) need not necessarily make an order for eviction of the tenant from the entire house, but may order eviction from a portion of the house. The house under tenancy may be so big that the reasonable requirement of the landlord may be satisfied by giving him possession of a portion of the house by evicting the tenant only from that portion of the house. Consideration of relative hardship to the landlord and the tenant, may also persuade the Prescribed Authority not to order eviction of the tenant from the entire house, but to order his eviction from a portion of the house. Consideration of relative hardship to the landlord and the tenant, may also persuade the Prescribed Authority not to order eviction of the tenant from the entire house, but to order his eviction from a portion of the house. When such is the legal position when the landlord makes an application for the first time under Section 21 of the Act, we do not see why the legal position should be different under clause (rr) of Section 43 (2) of the present Act. The words "shall order the eviction of the tenant from the building under tenancy" should, in our opinion, be read as "shall order eviction of the tenant from the entire building or any portion thereof." Even if a literal construction of the aforesaid words in clause (rr), leads to the conclusion that the eviction should be ordered from the entire building, it is well settled that Courts can depart from a literal construction of the words of a statute to avoid manifest absurdity or hardship which could not have been intended by the Legislature. We are unable to accept the contention of Sri Kacker that under Clause (rr) of Sec. 43(2) of the Act the Prescribed Authority is bound to make an order for eviction of the tenant from the entire suit house. 17. EVEN if the Prescribed Authority finds that the tenant has acquired one-fourth share in the suit house and has become a co-owner subsequent to the landlords filing the application under Section 21 of the Act, the Prescribed Authority has jurisdiction to make an order for eviction from a specified portion of the suit house. The Prescribed Authority need not wait until a partition of the suit house by metes and bounds, is effected by the civil court. By consigning the landlords' application to the records under a misapprehension that it (the Prescribed Authority) could not make an effective order until there was such partition of the suit house, the Prescribed Authority failed to exercise the jurisdiction vested in it to order eviction of the tenant from a specified portion of the suit house. Hence the impugned order of the Prescribed Authority is clearly unsustainable. 18. Hence the impugned order of the Prescribed Authority is clearly unsustainable. 18. IN the result we allow this petition, set aside the impugned order of the Prescribed Authority and direct it to take back the landlords' application to its file and to proceed to decide it according to law and in the light of the elucidation made in this order. The petitioners shall get from respondent-2 their costs. Petition allowed.