Hakim Safdar Khan v. Prescribed Authority/Munsif, Court No. 2 Rampor
1988-01-13
K.P.SINGH
body1988
DigiLaw.ai
JUDGMENT K. P. Singh, J. 1. This is a tenant's writ petition against the order dated 16-8-1986 passed by the Munsif I, Rampur in Case No 35 of 1984 Krishna Kumar v. Akbar Shah and another. The aforesaid order is contained in Annexure VI attached with the writ petition. 2. Necessary facts giving rise to the present writ petition are as follows:- "The petitioner was the tenant of a shop in Bazar Sarrafa, Puiana Ganj, Rampur on payment of Rs. 11.25 per month as rent. The opposite parties nos. 2 and 3 in the present writ petition namely Krishna Kumar and Vishnu Saran had moved an application under section 21 (1) (b) of U.P. Act No. 13 of 1972 for the ejectment of the petitioner. The application moved by the landlord was allowed through the order dated 18-11-1983. The petitioner had riled an appeal against the order dated 18-11-1983 and in appeal the parties entered into a compromise as is evident from Annexure 1-A attached with the writ petition and the appeal was decided in terms of the compromise through the order dated 18-10-1984 Thereafter the landlords moved an application under section 23 of the U. P. Act No 13 of 1972 and in that proceeding they succeeded in ejecting the petitioner from the disputed shop. The petitioner challenged the order of ejectment on the ground that the aforesaid order was passed ex-parte without any notice to the tenant as is evident from Annexure IV attached with the writ petition. The claim of the petitioner was contested by the landlords on various grounds. It was stressed that the petitioner did not comply with the order of the appellate court and that the landlords had taken possession in a proceeding under section 23 of the U.P. Act No. 13 of 1972 validly. It was not necessary to serve any notice upon the petitioner in the proceeding under section 23 of the above-mentioned Act. According to the landlords the petitioner had bad intention in not obeying the order of the trial court dated 18-10-1984, therefore, the petitioner was not entitled to get back possession from the landlords in any manner (See Annexure V attached with the writ petition). 3.
According to the landlords the petitioner had bad intention in not obeying the order of the trial court dated 18-10-1984, therefore, the petitioner was not entitled to get back possession from the landlords in any manner (See Annexure V attached with the writ petition). 3. The Prescribed Authority after examining the claims of the parties dismissed the petitioner's prayer for getting possession over the disputed shop and accepted the objection raised by the landlords as is evident from the impugned order dated 16-8-1985 contained in Annexure VI attached with the writ petition. Aggrieved by the aforesaid order dated 16-8-1985 passed by the Prescribed Authority the petitioner has approached this Court under Article 226 of the Constitution. 4. The learned counsel for the petitioner has contended before me that the order of ejectment against the petitioner without any notice to him was bad in law and should have been quashed on this ground alone. Second contention raised on behalf of the petitioner before me is that the landlords did not comply with the terms of the compromise, therefore, no question of ejectment of the petitioner from the disputed shop arose. It has been impressed that the order of ejectment of the petitioner in proceedings under section 23 of the U. P. Act No. 13 of 1972 should have been quashed as the landlords were defaulters in carrying out the terms of the compromise. 5. Third contention raised on behalf of the petitioner before me is that the petitioner should get possession over a shop newly constructed by the landlords after the ejectment of the petitioner. 6. The learned counsel for the contesting opposite party has submitted in reply that the disputed shop has been demolished and a new construction has been raised, therefore, the petitioner's application for getting the order of ejectment under section 23 quashed and getting possession over the disputed shop has become infructuous, therefore, the writ petition should be quashed. Second submission made on behalf of the landlords is to the effect that the petitioner was at fault in not giving possession to the landlords in pursuance of the compromise arrived at between the parties in the appeal, therefore, the ejectment of the petitioner was rightly ordered by the Prescribed Authority and the prayer for getting possession from the landlords has rightly been refused by the Prescribed Authority in the facts and circumstances of the present case. 7.
7. Third submission made on behalf of the contesting opposite parties is to the effect that the petitioner has an alternative remedy to get possession over the reconstructed premises under the provisions of section 24 of the Act, therefore, the present writ petition should be dismissed. If the petitioner in law is entitled to get possession over the reconstructed building or any portion thereof, he should pursue his legal remedies strictly in accordance with law. In short, the submission of the learned counsel for the opposite parties is to the effect that the impugned order of the Prescribed Authority contained in Annexure VI attached with the writ petition does not suffer from any patent error of law and has done substantial justice between the parties, therefore, it should not be quashed. 8. I have weighed the contentions and submissions made on behalf of the parties. In paragraphs 7 and 10 of the counter affidavit filed on behalf of the landlords, it has been clearly stated that the old building has been pulled down and in paragraphs 8 and 10 of the rejoinder affidavit it has not been denied that the old building had been pulled down. I think that the petitioner's prayer for getting the order of ejectment under section 23 of the above-mentioned Act and getting possession over the disputed shop has become infructuous in the facts and circumstances of the present case. It is well known that subsequent events can be taken into account in a proceeding for ejectment from the disputed premises. In the present case the petitioner's application for getting possession over the disputed shop has become infructuous due to the facts and circumstances that the shop has been demolished therefore, I think that the petitioner cannot get relief of quashing the order contained in Annexure 6 attached with the writ petition. In Jamuna Prasad v. 2nd Additional District Judge, Bareilly, 1986 (II) ARC 206 and M. M Qasim v. Manohar Lal Sharma, 1981 U.J. (SC) 396 it has been emphasized that subsequent events should be taken into account. In M/s. Variety Emporium v. V.R.M. Mohd.
In Jamuna Prasad v. 2nd Additional District Judge, Bareilly, 1986 (II) ARC 206 and M. M Qasim v. Manohar Lal Sharma, 1981 U.J. (SC) 396 it has been emphasized that subsequent events should be taken into account. In M/s. Variety Emporium v. V.R.M. Mohd. Ibrahim Naina, 1985 U. J. 1, their Lordships of the Supreme Court vide para 16 have observed as below : "No authority is needed for the proposition that in appropriate cases the Court must have regard to the events as they present themselves at the time when it is hearing the proceeding before it and could give the relief in the light of those events. We may, however, draw the attention to a decision of this Court in Hashmat Rai v. Raghunath Prasad, 1981 U.J. (SC) 477, the ratio of which may be stated thus : "When an action is brought by a landlord for the eviction of a tenant on the ground of personal requirement, the landlord's need must not only be shown to exist at the date of the suit, but it must exist on the date of the appellate decree or the date when a higher court deals with the matter. During the progress and passage of proceeding from court to court, if subsequent events occur which, if noticed, would non-suit the landlord, the Court has to examine and evaluate those events and mould the decree accordingly. The tenant is entitled to show that the need or requirement of the landlord no more exists by pointing out such subsequent events, to the Court, including the appellate court. In such a situation, it would be incorrect to say that as a decree or order for eviction is passed against the tenant, he cannot invite the Court to take into consideration subsequent events. The tenant can be precluded from so contending only when a decree or order for eviction has become final." Since the petitioner's prayer for getting possession over the disputed shop which has been demolished had become impossible in the facts and circumstances of the present case therefore, the petitioner cannot get the order contained in Annexure 6 quashed. 9.
The tenant can be precluded from so contending only when a decree or order for eviction has become final." Since the petitioner's prayer for getting possession over the disputed shop which has been demolished had become impossible in the facts and circumstances of the present case therefore, the petitioner cannot get the order contained in Annexure 6 quashed. 9. As regards the petitioner's contention to get possession over a portion of the reconstructed building it is sufficient to mention that the provisions of section 24 (2) of the U.P. Act No. 13 of 1972 read as below :- "(2) Where the landlord after obtaining a release order under clause (b) of sub-section (1) of section 21 demolishes a building and constructs a new building or buildings on its site, then the District Magistrate may, on an application being made in that behalf by the original tenant within such time as may be prescribed, allot to him the new building or such one of them as the District Magistrate after considering his requirements thinks fit, and thereupon that tenant shall be liable to pay as rent for such building an amount equivalent to one per cent per month of the cost of construction thereof (including the cost of demolition of the old building but not including the value of the land) and the building shall, subject to the tenant's liability to pay rent as aforesaid, be subject to the provisions of this Act, and where the tenant makes no such application or refuses or fails to take that building on lease within the time allowed by the District Magistrate, or subsequently ceases to occupy or otherwise vacates it, that building shall also be exempt from the operation of this Act for the period or the remaining period, as the case may be, specified in sub-section (2) of section 2". 10. In view of the aforesaid provision of section 24 (2) of the Act read with Rule 20 under the Act, the petitioner cannot get possession over the reconstructed building in the proceeding giving rise to the present writ petition. If the petitioner has any legal right to get possession he can seek his remedy before appropriate court. In the present proceedings the petitioner is not entitled to get possession over any of the portion of the reconstructed building.
If the petitioner has any legal right to get possession he can seek his remedy before appropriate court. In the present proceedings the petitioner is not entitled to get possession over any of the portion of the reconstructed building. Therefore, the petitioner's contention in this regard has also no merits and he cannot get relief asked for. The contention of the learned counsel for the petitioner that the order of ejectment in proceedings under section 23 was passed without any notice to the petitioner, therefore, the order of ejectment should have been quashed and the possession should have been delivered to the petitioner over the disputed shop has also no force. A learned Single Judge of this Court in Keshav Dutt Dwivedi v. Prescribed Authority, Lucknow, 1975 ALJ (?) constituted under U.P. Act No. 13 of 1972 and others vide para 2 of his judgment has indicated as below : - " ........................As soon as an order under section 21 is passed the tenant as also all other persons living with him or on his behalf can be ordered to be evicted without any notice to them. The view taken by the Prescribed Authority in my opinion is correct". 11. In view of the above observations the contention of the learned counsel for the petitioner that the order of ejectment without any notice to him sufferred from patent error of law also fails 12. As regards the contention of the learned counsel for the petitioner that the landlords did not comply with the compromise decree, therefore, they were not entitled to get ejectment of the petitioner, I think that the Prescribed Authority has correctly arrived at the conclusion that the petitioner had failed to comply with the terms of the compromise, therefore, the landlords were entitled to the ejectment of the petitioner from the disputed shop. In my opinion this contention on behalf of the petitioner also fails. In the result, all the contentions raised on behalf of the petitioner fail and the writ petition being devoid of merits is hereby dismissed. Parties are directed to bear their own costs. Petition dismissed.