Ram Autar v. Prescribed Authority — 1982 DIGILAW 1052 (ALL)

JUDGMENT A.N. Varma, J. - These two writ petitions are being disposed of by a common judgment as they are directed against the same order dated 30th of July, 1979. The Prescribed Authority exercising powers under section 43 (2)(rr) of the U.P. Act No. XIII of 1972, directed the eviction of the petitioner. Ram Autar and at the same time rejected the objection of Smt. Kalawati Devi, the petitioner in Writ Petition No. 7574 of 1979. 2. The relevant facts are that Sheo Mahendra Kumar Singh (respondent No. 2 herein) filed an application in the year 1969 under section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 for permission to file a suit against Ram Autar wand Sri Ram Chandra Mal in respect of two shops bearing Nos. 9 and 10 in Mandi Harbansganj, Dhampur. The application was filed on the ground that the shops had become dilapidated and worn out and the applicant proposed to demolish them and re-construct a new building with provision for residential accommodation on the first floor and shops on the ground floor. This application was allowed by the Rent Control and Eviction Officer and the order passed was affirmed in revision both by the Commissioner as well as by the State Government under section 7 F of the aforesaid Act. Thereafter the said Sri Mahendra Kumar Singh instituted a suit against Ram Autar and the respondents Nos. 4 to 8, who are the heirs of one Ram Chandra Mal along with whom one Ram Autar, the husband of Smt. Kalawati Devi, are said to have taken the two shops in question on a monthly rental of Rs. 11.25. 3. While the suit was pending Section 43(2)(rr) of the U.P. Act No. XIII of 1972 was amended enabling the landlords to make applications for eviction of their tenants if the permission obtained by them under section 3 of the 1947 Act was based on any of the grounds specified in sub-section (I) or sub-section (21 of Section 21 of the U.P. Act No. XIII of 1972, provided the same had become final before the commencement of the U.P. Act No. XIII of 1972. It is not disputed that the permission had become final before the commencement of this Act. 4. It is not disputed that the permission had become final before the commencement of this Act. 4. The aforesaid application under sectton 43(2)(rr) was contested by the petitioner Ram Autar, who claims to have succeeded to the tenancy rights of Ram Kumar aforesaid, on the ground that the permission was not based on any of the grounds specified in sub-section (1) or sub-section (2) of Section 21 and in any case the landlord had not complied with the provisions of Rule 17 of the Rules framed under the U.P. Act No. XIII of 1972. 5. While the aforesaid proceedings were pending Smt. Kalawati Devi, the widow of Ram Kumar filed an objection against the aforesaid application, praying therein that the application be dismissed in respect of the shop specified in Schedule B to the objection which is shop No. 9 in question and which is said to have been let out to Ram Kumar. In this objection Smt. Kalawati Devi asserted that both Ram Kumar and Ram Chandra Mal had taken the aforesaid shops Nos. 9 and 10 on rent. Ram Kumar died in the year 1964 and she succeeded to the tenancy rights of Ram Kumar. After the death of Ram Kumar she was doing the business in the shop in which Ram Kumar was carrying on business. However, the landlord did not implead her in the application under section 3 for permission. Nor did the landlord implead her even in the suit which was filed on the basis of that permission. She could not hence be legally evicted under section 43(2)(rr) on the basis of the permission which the landlord had obtained against Ram Autar. 6. By the impugned order, as mentioned above, the Prescribed Authority rejected the objection of Smt. Kalawati Devi as well as filed by Ram Autar and allowed the application of the landlord. The Prescribed Authority has held that the permission obtained by the landlord was based on a ground covered by Section 21(l)(b) and the permission having become final before the commencement of the year 1972 Act, the landlord was entitled to an order of eviction against the petitioners under section 43(2)(rr). The Prescribed Authority has held that the permission obtained by the landlord was based on a ground covered by Section 21(l)(b) and the permission having become final before the commencement of the year 1972 Act, the landlord was entitled to an order of eviction against the petitioners under section 43(2)(rr). In regard to the objection of Smt. Kalawati Devi, the Prescribed Authority has held that as Ram Chandra Mal and Ram Kumar were joint tenants and as there was no partition between them, the permission obtained against some of the joint tenants would operate against the entire body of tenants, following a Division Bench of this Court reported in 1958 A.L.J. 573. 7. I shall first take up the petition of Ram Autar. It is not disputed that a permission under section 3 has been obtained against him by the landlord and that the same became final before the commencement of the 1972 Act. From an examination of the orders passed by various Rent Control Authorities, granting the permission under section 3 of the 1947 Act, it is apparent that the permission was obtained by the landlord on a ground which is specified in section 21(i)(b) of 1972 Act. The landlord was hence clearly entitled to an order of eviction against Ram Autar. 8. Sri Jagdish Swarup, however, submitted that the findings recorded by the Rent Control authorities granting the permission under section 3 of the 1947 Act do not amount to a finding that the building was in a dilapidated condition which is required for demolition and re-construction. 9. Having heard learned counsel for the parties, I find no merit in the above contention. A perusal of the orders granting the permission leaves no manner of doubt that the permission was both sought and was granted on the ground that the building was in a dilapidated condition and was required for the purpose of demolition and new construction. The ground upon which the permission was sought granted was in my opinion covered by section 21(1)(b). The conclusion of the court below on this aspect seems correct and sound and calls for no interference. 10. The main contention of the learned counsel for the petitioner in support of writ petition of Ram Autar was that the landlord had not complied with Rule 17 of the Rules framed under the 1972 Act, which was mandatory. The conclusion of the court below on this aspect seems correct and sound and calls for no interference. 10. The main contention of the learned counsel for the petitioner in support of writ petition of Ram Autar was that the landlord had not complied with Rule 17 of the Rules framed under the 1972 Act, which was mandatory. It was urged by Sri Jagdish Swarup, relying on a decision of this court reported in 1980 Allahabad Rent Cases 340(245) that Rule 17(1) prescribes an additional condition for an order of eviction under section 21(l)(b), namely, that the building requires demolition. This condition does not exist in the present case. Even on the finding of the Rent Control authorities granting the permission. 11. I unable to accept the contention. In Writ Petition No. 14807 of 1981, I have considered the question whether the landlord is required to comply with Rule 17 before claiming an order of eviction under section 43 (2)(rr) and have answered the question in the negative. In that petition, I have dealt at some length with identical submissions raised by Sri Jagdish Swarup and did not accept them. Following the judgment delivered in that petition today, I hold that the landlord was not required to comply with Rule 17. I adopt the reasonings which have been given in that petition on the aforesaid contention. 12. Even on merits, learned counsel is not right. The finding of the Rent Control authorities granting the permission is that the shop has run-out its life and that its continued existence poses danger to human life. The building is thus on which "requires demolition" under Rule 17(1). 13. There is thus no substance in the Writ Petition of Ram Autar which is liable to be dismissed in its entirety. 14. Coming to the petition of Smt. Kalawati Devi, the contention of Sri Jagdish Swarup was that Ram Kumar and Ram Chandra Mal were not joint tenants. They were Legally speaking tenants in common or co-tenants as commonly understood. On the death of Ram Kumar, therefore, the tenancy rights devolved on his widow Smt. Kalawati Devi. She was hence a tenant in her own right, having separate and distinct interest in the shop in dispute. It was urged that the basic premise of the Prescribed Authority that Ram Kumar and Ram Chandra Mal were joint tenants was manifestly unsustainable. On the death of Ram Kumar, therefore, the tenancy rights devolved on his widow Smt. Kalawati Devi. She was hence a tenant in her own right, having separate and distinct interest in the shop in dispute. It was urged that the basic premise of the Prescribed Authority that Ram Kumar and Ram Chandra Mal were joint tenants was manifestly unsustainable. It was further contended that the Prescribed Authority was wrong also in its premise that the permission obtained against Ram Autar would legally operate against Smt. Kalawati Devi also. 15. Shri Rishi Ram, learned counsel for the landlord, on the other hand, supported the conclusion of the Prescribed Authority on the aforesaid controversy. He submitted relying on the aforesaid Division Bench of this Court reported in 1958 A.L.J. 573 that the permission obtained against Ram Autar would operate against Smt. Kalawati Devi also. He further submitted that in any case after the death of Ram Kumar the landlord was throughout accepting rent only from Ram Autar, and that Smt. Kalawati Devi had nothing whatever to do with the shop or business or the tenancy rights. She came on the scene only in 1976, that is after 22 years of the death of Ram Kumar. Her rights, if any have lapsed. 16. Having heard learned counsel for the parties, I am clearly of the opinion that so far shop No. 10 in which Ram Chandra Mal was carrying on business is concerned, the petition of Smt. Kalawati Devi is liable to be dismissed on the short ground that even in her objection she had claimed no interest in that shop. Her objection was specifically confined to the shop which was given in Schedule 13 to her objection and in which Ram Kumar was carrying business and paying rent therefore. From a perusal of the writ petition of Smt. Kalawati Devi and her rejoinder-affidavit too it is clear that according to Smt. Kalawati Devi, Ram Kumar was doing separate business in shop No. 10 and he enjoyed exclusive tenancy rights in respect thereof. She does not appear to have claimed any right in shop No. 10. 17. The claim of Smt. Kalawati Devi in her writ petition in regard to shop No. 10 is, therefore, liable to be rejected on this ground alone. 18. She does not appear to have claimed any right in shop No. 10. 17. The claim of Smt. Kalawati Devi in her writ petition in regard to shop No. 10 is, therefore, liable to be rejected on this ground alone. 18. Coming to shop No. 9, in my opinion the controversy whether Smt. Kalawati succeeded to the tenancy rights of Ram Kumar and whether she was a tenant in that shop in her own right, were matters outside the purview of the application filed by the landlord against Ram Autar and the heirs of Ram Chandra Mal. As against these persons the landlord had admittedly obtained a permission under section 3 and that permission had become final before the commencement of the 1972 Act. The landlord was thus clearly entitled to an order of eviction against these persons The claim of Smt. Kalawati Devi could not hence properly fall within the scope and ambit of enquiry which was commenced in pursuance of the landlord's application under section 43(2)(rr) against Ram Autar and the heirs of Ram Chandra Mal. Admittedly, there was no permission against Smt, Kalawati Devi under section 3 and the landlord has not filed any application against her under section 43(2)(rr). Whether she can be evicted in pursuance of the permission obtained against Ram Autar and the heirs of Ram Chandra Mal in proceedings under section 43(2)(rr) was against a matter which was beyond the scope of proceedings started by the landlord. 19. In this view it was not necessary for the Prescribed Authority to go into the merits of the claim of Smt. Kalawati Devi in respect of shop No. 9 at this stage. The Prescribed Authority seized of an application under section 43(2)(rr) is not the forum for investigating such a claim. The Prescribed Authority was therefore not justified in entering into the controversy raised in the objection of Smt. Kalawati Devi. The finding of the Prescribed Authority on the objection of Smt. Kalawati Devi was wholly unnecessary. The adjudication was premature and it is liable to set aside on this preliminary ground alone, without going into the merits thereof. 20. I am, hence, expressing no opinion either way on the merits of the various contentions raised by the learned counsel for the parties, nor even on the finding recorded by the Prescribed Authority. 21. The adjudication was premature and it is liable to set aside on this preliminary ground alone, without going into the merits thereof. 20. I am, hence, expressing no opinion either way on the merits of the various contentions raised by the learned counsel for the parties, nor even on the finding recorded by the Prescribed Authority. 21. The result of the aforesaid discussion, therefore, is that whereas petition of Ram Autar (Writ No. 8357 of 1979) fails and is dismissed with costs, that filed by Smt. Kalawati Devi (Writ No. 7574 of 1979) partly succeeds in so far as shop No. 9 is concerned to the extent that the finding of the Prescribed Authority as regards the claim of Smt. Kalawati Devi in respect of this shop is set aside subject to the observations made herein above. The petition of Smt. Kalawati Devi, however, fails and is dismissed in its entirety so far as shop No. 10 is concerned. In view of the divided success of the parties in the petition of Smt. Kalawati Devi, I make no order as to costs.