Hira Rani Seth v. District Judge Kanpur — 1979 DIGILAW 778 (ALL)

ORDER S.D. Agarwala, J. - These are two connected writ petitions arising out of the same judgment of the District Judge, Kanpur dated 11th Nov., 1978 arising out of release proceedings in respect of house No. 7/144, Swarup Nagar, Kanpur. Since they arise out of the same judgment, they are being decided by a common judgment. 2. Smt Hira Rani Seth is the landlady of the premises and L. Dayal is a tenant. The facts of this case are really shocking. It is a glaring example of a case where a tenant has been harassing the landlady for more than a decade. The landlady gave a part of her premises on rent to the tenant. The tenant at that time was posted as Assistant Commissioner, Income-tax. The premises was let out for a short time in the year 1957 on the assurance given by the tenant to the husband of the landlady that the would vacate it very soon. Since it was a part of the accommodation, she gave consent as required by Rule 7 of Rules framed under the U.P. (Temporary) Control of Rent and Eviction Act, 1947, U.P. Act III of 1947 (hereinafter referred to as the old Act). The tenant in spite of promises did not vacate the premises. In the year 1961, the tenant was likely to be transferred out of Kanpur, and therefore, the landlady moved an application for release under Rule 6 of the Rules framed under the old Act. The Rent Control and Eviction Officer, Kanpur found the need of the landlady genuine, bonafide and pressing and as such release order was passed in her favour on 30th Oct., 1961. In spite of the fact that the release order was passed, possession could not be delivered to the landlady as the tenant was not transferred. In 1967 the husband of the landlady died. Thereafter, the landlady moved an application under Section 3 of the old Act in 1968 seeking permission to eject the tenant. In this application the bonafide need of the landlady for use of the accommodation for her personal use as enumerated. It was in particular stated that the premises in dispute was required to meet the genuine requirement of the expanding family of the landlady and to provide suitable space for the medical pursuit of the son of the landlady Dr. K. M. Seth. It was in particular stated that the premises in dispute was required to meet the genuine requirement of the expanding family of the landlady and to provide suitable space for the medical pursuit of the son of the landlady Dr. K. M. Seth. During the tendency of this application, the tenant realising the bonafide need of the landlady accepted the allegations made in the said application and a joint application was moved on 27th Feb., 1969 before the Rent Control and Eviction Officer, Kanpur that the application be allowed and further that the landlady shall not evict the tenant on or before 30th June, 1974. It was in view of this compromise by the tenant and clear assurance given by him that he would vacate the premises on 30th June, 1974, the Rent Control and Eviction Officer on 1st of March, 1969 granted permission in terms of the compromise filed by the parties. 3. When 30th June, 1974 arrived, again the tenant did not act according to the terms of the agreement and did not vacate the premises. The landlady was then compelled to move an application on 28th Nov, 1974 under Section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. U.P. Act XIII of 1972 (hereinafter referred to as the new Act), as required under Section 432) (rr) of the new Act. This application was now opposed by the tenant alleging besides technical point in regard to the maintainability of the application that the compromise had been obtained under duress and that the order dated 1st March, 1969 based on the compromise was an invalid order. The tenant further took the technical objection that the application was not maintainable and that the entire matter be again thrashed out under the provisions of the new Act and the landlady should again establish her bonafide need. Due to the objection it took another five years to dispose of the application The application came up for hearing before the prescribed authority. The prescribed authority repelled the contention of the tenant and held that the tenant was highly educated person and was holding a responsible post of Commissioner of Income-tax and as such, it could not be said that the compromise was bad due to undue influence. The prescribed authority further held that the compromise was voluntary. The prescribed authority repelled the contention of the tenant and held that the tenant was highly educated person and was holding a responsible post of Commissioner of Income-tax and as such, it could not be said that the compromise was bad due to undue influence. The prescribed authority further held that the compromise was voluntary. The prescribed authority on 29th May, 1978 allowed the application for release of (he accommodation and directed the tenant to vacate the premises within one month. 4. Against the order dated 29th May, 1978, the tenant filed a rent appeal No. 65 of 1968 in the court of District Judge, Kanpur. The District Judge, allowed the appeal in part and released only a part of the accommodation in possession of the tenant and dismissed the application in regard to the other part by his judgment dated 11-11-1978. The landlady as well as the tenant being aggrieved by this judgment have filed the above mentioned two writ petitions in this court. 5. Arguments of the learned counsel appearing on behalf of the tenant as well as the landlady hinge upon interpretation of Section 43(2)(rr) of the new Act. The landlady as well as the tenant being aggrieved by this judgment have filed the above mentioned two writ petitions in this court. 5. Arguments of the learned counsel appearing on behalf of the tenant as well as the landlady hinge upon interpretation of Section 43(2)(rr) of the new Act. Section 43(2)(rr) of the new Act is quoted below : "(rr) where any permission referred to in Section 3 of the old Act has been obtained on any ground specified in sub-section (1) 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, whether or not a suit for the eviction of the tenant, been instituted, the landlord may apply to the prescribed authority for his eviction under Section 21, and thereupon 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 under Section 22 ; Provided that no application under this clause shall be maintainable on the basis of a permission granted under Section 3 of the old Act, where such permission became final more than three years before the commencement of this Act : Provided further that in computing the period of three years, the time during which the applicant has been prosecuting with due diligence any civil proceeding whether in court of first instance or appeal or revision shall be excluded." 6. Learned counsel On behalf of the tenant has urged that the application moved by the landlady under the above section is not maintainable as it barred by time. Reliance in this connection is placed on the first proviso to the above section. He further urged that the permission dated 1st of March, 1969 has not been obtained on any ground mentioned in sub-section (1) or sub-section (2) of Section 21 of the new Act, and as such, this section cannot be invoked by the landlady. 7. Reliance in this connection is placed on the first proviso to the above section. He further urged that the permission dated 1st of March, 1969 has not been obtained on any ground mentioned in sub-section (1) or sub-section (2) of Section 21 of the new Act, and as such, this section cannot be invoked by the landlady. 7. Learned counsel on behalf of the landlady, on the other hand, has urged that the order passed under Section 43 (2) (rr) was a final order and was not appealable under Section 22 of the new Act and as such, the order of the District Judge is wholly without jurisdiction. It was also urged in the alternative that the District Judge having found that the need of the landlady was bonafide had no jurisdiction to release only a part of the accommodation when such a question was never raised by the tenant at any stage denying an opportunity to the landlady to establish her case for the release of the entire accommodation. 8. The first proviso clearly lays down that no application under 1 (2) sub-cl. (rr) of Section 43 of the Act shall be maintainable on the basis permission granted under Section 3 of the old Act where such permission became final more than three years before the commencement of this Act. In the present case, the order granting permission on 1st of March,1969 was not effective till 30th June, 1974 as the permission granted was on the basis of the compromise. Since the permission itself became effective on 30th June, 1974, the proviso is not applicable at all on the facts of the instant case and hence the application of the landlady cannot be rejected on the ground that it is not maintainable. The intention of the legislature while enacting the proviso is only to put a finality to those permissions which though granted prior to three years of coming into force of the new Act. but the landlords did not avail of the said permissions. The reason appears to be that when three years have already elapsed, it should be presumed that the landlord ceases to have the need of the accommodation and thereafter he was obliged to move afresh under Section 21 of the new Act. but the landlords did not avail of the said permissions. The reason appears to be that when three years have already elapsed, it should be presumed that the landlord ceases to have the need of the accommodation and thereafter he was obliged to move afresh under Section 21 of the new Act. In the instant case, the order of granting permission is no doubt of 1st March 1969, but it did not come into effect before 30-6-1974 and as such the proviso was clearly not applicable. The view taken by the District Judge is manifestly erroneous in law in this regard. 9. In regard to the second submission made by the learned counsel for the tenant, the District Judge himself has also recorded a finding after examining the documents on the record that the permission was obtained under the old Act on the grounds mentioned in Section 21 (1) (a) of the new Act. I have examined the findings recorded by the District Judge in this regard and I agree with the reasons recorded by him. The view taken by the District Judge is correct. 10. In view of the above, I do not find substance in the submissions made on behalf of the tenant. 11. The submissions made on behalf of the landlady are however, well founded. Section 43 (2 (rr) clearly provides that an order passed under that section is final and shall not be open to appeal under Section 22 of the new Act. The words of the Section are absolutely clear. No appeal lay against the order of the Prescribed Authority dated 29th May, 1978 and as such the order of the District Judge is wholly without jurisdiction. 12. Alternatively, even if an appeal lay then too the District Judge had no jurisdiction to reassess the evidence and thereafter come to a fresh conclusion in regard to the bonafide need of the landlady and the part to be released to her as Section 43 (2) (rr) clearly provides that an order passed under Section 3 could be a final order whether passed before or after the coming into force of the new Act. 13. The last submission has been made assuming that the District Judge had the jurisdiction to entertain the appeal. 14. 13. The last submission has been made assuming that the District Judge had the jurisdiction to entertain the appeal. 14. The District Judge after examining the evidence on the record held that the landlady bonafide requires the accommodation in dispute for residential purposes of her family and her requirement is quite pressing as well. After having recorded this finding, the District Judge has only released a part of the accommodation. In the objection filed by the tenant, the tenant had not taken this objection that only a part of the accommodation was sufficient for the need of the landlady. In the absence of this objection the landlady was denied an opportunity of producing evidence to show that she requires the entire accommodation and that the part of the accommodation would not be sufficient. In case the District Judge wanted to release only a part of the accommodation it was necessary that an opportunity should have been afforded to the landlady to place her case before the District Judge. In the circumstances, the landlady has been denied a reasonable opportunity of being heard on this question. 15. R. 16 (1) (d) provides: Where the tenant's need would be adequately met by leaving with him a part of the building under tenancy and the landlord's need would be served by releasing the other part the prescribed authority shall release only the latter part of the building; The District Judge has only considered the tenant's need. He has not considered the question as to whether the landlady's need would be served by releasing the other part of the accommodation in dispute. The decision to release only a part, of the accommodation has to be based on objective facts and not mere subjective satisfaction of the authority. In the absence of the consideration of the landlady's need, the finding releasing part of the accommodation is vitiated in law. In the circumstances for both the reasons above, order of the District Judge releasing only a part of the accommodation in favour of the landlady, when her need was held to be fully established and bonafide, is vitiated in law and is liable to be set aside. 16. For all the reasons mentioned above, I quash the order of the District Judge, Kanpur dated 11th Nov. 1978 and restore that of the prescribed authority Kanpur dated 29th May, 1978. 16. For all the reasons mentioned above, I quash the order of the District Judge, Kanpur dated 11th Nov. 1978 and restore that of the prescribed authority Kanpur dated 29th May, 1978. Writ petition No. 288 of 1979 is allowed and writ petition No. 10329 of 1978 is dismissed. Parties are directed to bear their own costs in both the petitions.