Sham Lal v. State of U. P. — 1990 DIGILAW 26 (ALL)

JUDGMENT A.N.Varma, J. 1. This petition is directed against concurrent judgments and orders passed by the. Prescribed Authority and the learned Additional District Judge, Dehradun, directing the eviction of the petitioner from premises no. 87, Rajpur Road, Dehradun, known as "Inverness". 2. These are the essential facts. The State of Uttar Pradesh, the owner and landlord of the premises mentioned above, instituted a suit no. 250 of 1967 in the court of the learned Munsif, Dehradun, on 5-6-67 against B. L. Mehra, the tenant of the premises and the father of the present petitioner. The relief claimed in the suit was for ejectment as well as for Rs. 226.45 as arrears of rent and mesne profits pendente lite and future. The suit was filed on the assertion that B. L. Mehra was a tenant from month to month at a rental of Rs. 112/- per mensum. The property was required by the plaintiff for the establishment of the office of the Forest Department at Dehradun. Consequently a legal notice terminating the tenancy of the defendant was served on the latter on 4-4-1966. B. L. Mehra having failed to comply with that notice the suit had to be instituted for the reliefs mentioned above. The suit was contested by B. L. Mehra on a variety of grounds which, it is not necessary to elaborate here. During the pendency of the suit U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereafter the 1972 Act) came into force, inter alia, taking away the jurisdiction of the civil courts in respect of eviction of persons in unauthorised occupation of public premises. Section 20 (2) of the said Act provided that suits and other proceedings for the reliefs mentioned in Section 15 instituted in any court shall stand transferred to the Prescribed Authority constituted under the said Act. The suit was accordingly transferred by the learned Munsif to the Prescribed Authority. During the pendency of the suit B. L. Mehra died on 21-4-1977 and his legal representatives including the petitioner were substituted on the record in place of B. L. Mehra. Whether the legal representatives were actually substituted or not is a matter on which there is some controversy between the parties which for the present need not be elaborated here. 3. Whether the legal representatives were actually substituted or not is a matter on which there is some controversy between the parties which for the present need not be elaborated here. 3. Be that as it may, the Prescribed Authority allowed the application of the State Government and directed the eviction of the petitioner as well as other legal representatives of B. L. Mehra. An order for deposit of rent at the rate determined by the Prescribed Authority was also made. Aggrieved by this order of the Prescribed Authority, two appeals were filed by the petitioner, one against the order of eviction and the other against the rent. Both these appeals have been dismissed by the learned Additional District Judge, Dehradun by his judgment and order dated 20-3-1985. 4. It is the validity of these orders which are the subject of challenge in this petition. The first point urged in support of the petition was that the order of transfer of the suit by the learned Munsif to the Prescribed Authority was unsustainable in law. IT is, however, not necessary to elaborate the grounds upon which the order of transfer was sought to be assailed by the learned counsel in view of the fact that B. L. Mehra had challenged this very order of transfer by way of a writ petition in this Court, being writ petition no. 3669 of 1973, and this Court dismissed the petition. It is settled law that the principle of res judicata is equally applicable as between the two stages of the same litigation to this extent that a court, whether the trial court or a higher court, having at an earlier stage decided a matter in one way will now allow the parties to reagitate the matter again at a subsequent stage of the same proceedings.-See Satyadhan v. Smt. Deorajin Debi, AIR 1960 SC 941 Para 8. Their Lordships observed that this principle is based on the need of giving a finality to judicial decisions. In view of this settled legal position it is not competent to the petitioner to challenge the correctness of the order of transfer of the civil suit in terms of subsection (2) of Section 20 of the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. In view of this settled legal position it is not competent to the petitioner to challenge the correctness of the order of transfer of the civil suit in terms of subsection (2) of Section 20 of the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. The second and the main contention of the learned counsel for the petitioner was that no order of eviction could legally be passed under the aforesaid Act unless a notice under Section 4 to show cause was served on the occupants of public premises. It was urged that service of a notice under Section 4 was sine qua non for exercise of the jurisdiction conferred on the Prescribed Authority under Section 5 of the Act to order eviction of unauthorised occupants of public premises inasmuch as no notice under that provision was admittedly served either on B. L. Mehra or on his heirs, the order of eviction must, it was argued, be quashed on this preliminary ground. I am unable to agree. 5. The submission totally ignores material provisions as well as the scheme of the Act. Section 15 of the Act completely bars the jurisdiction of any court to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises or the recovery of the arrears of rent payable under sub-section (1) of Section 7 The bar is absolute in that no court could entertain after the enforcement of the Act, any suit or proceeding in respect of eviction of persons in unauthorised occupation of public premises or recovery of arrears of rent. The Act having barred the jurisdiction of courts to entertain suits or proceedings of the nature mentioned above enacted an alternative forum by providing both for transfer of such suits as well as for the procedure to be followed from the stage from which the suit or proceeding was transferred vide subsection (2) of Section 20 of the Act. As this provision has a material bearing for the decision of this issue the same is being extracted here in extenso- "20 (1) ............ As this provision has a material bearing for the decision of this issue the same is being extracted here in extenso- "20 (1) ............ (2) Notwithstanding any judgment, decree or order of any court or authority, and notwithstanding anything contained in Section 15 or Section 19, any suit or other proceeding for any of the reliefs mentioned in Section 15 instituted in any court or initiated or purported to be initiated by any authority under a repealed enactment before the commencement of this Act, and pending at the commencement of the Uttar Pradesh Public Land and Premises Laws (Amendment and Validation) Act, 1970 (hereafter in this Section referred to as the 1970 Act), either in the court of first instance or in any court of appeal or revision or before such authority, shall stand transferred to the prescribed authority, and the prescribed authority shall thereupon dispose of the same as proceeding under the relevant provisions of this Act, and any proceeding- (a) the prescribed authority may proceed further from the stage from which the suit or proceeding is transferred, and may for that purpose treat any summons or notice issued, written statement or reply tiled or evidence adduced in such suit or proceeding before the transfer, as notice issued by itself, or, as the case may be, cause shown or evidence adduced before itself, under the relevant provision of this Act ; (b) any objection referred to the District Judge under Section 10 of the Uttar Pradesh Government Premises (Rent, Recovery and Eviction) Act, 1952 or before the Civil Judge under Section 7 of the Uttar Pradesh Public Land (Eviction and Recovery of Rent and Damages) Act, 1959 before those sections were repealed by the 1970 Act shall be decided by the prescribed authority itself, and any reference, suit or appeal under the said sections shall abate ; Provided that where any such reference, suit or appeal has been decided before the coming into force of this Act the prescribed authority shall act according to such decision, which, subject to the provisions of Section 9, shall be deemed to be final." (Emphasis mine) 6. Two features are easily discernable from these provisions-(i) the suits or proceedings for any of the reliefs mentioned in Section 15 pending at the commencement of the Uttar Pradesh Public Land and Premises Laws (Amendment and Validation) Act, 1970 are to stand transferred to the Prescribed Authority and thereupon the suit or the proceeding is required to be disposed of as a proceeding under the corresponding provision of the 1972 Act and (ii) the Prescribed Authority may, for that purpose, treat any summons or notice issued, written statement or reply filed or evidence adduced in such suit or proceeding before the transfer as notice issued by itself under the relevant provisions of the 1972 Act. The provision clearly enacts a legal fiction. It requires that a certain state of things which is not real may be assumed to be so. Thus it states that summons and notice issued in the suit or proceeding transferred under Section 20 (2) may be treated as a notice issued by the Prescribed Authority under the relevant provision of 1972 Act. In the context of the present problem it means that a notice issued under Section 106 of the Transfer of Property Act in the suit so transferred shall be treated as a notice under the corresponding provision of the 1972 Act, the corresponding provision obviously being Section 4 of the 1972 Act. It is firmly established that when a legislature creates a legal fiction it requires that all such things as logically flow from that fiction must be assumed to exist. The decisions lay down that full effect must be given to statutory fiction and it should be carried to its logical conclusion-See State of Bombay v. Pandurang Vinayak, AIR 1953 SC 244 at 246 ; Commissioner of Income Tax, Delhi v. S. Teja Singh, AIR 1959 SC 352 at 355 ; Cheif Inspector of Mines v. K. C. Thapar, AIR 1961 SC 838 at 845. As this principle is so well rooted in authority, I consider it unnecessary to encumber this decision with various pronouncements of the Supreme Court on the point. I, however, cannot resist the temptation of extracting here an oft quoted passage from the famous speech of Lord Asquith in East End Dwelling Co. As this principle is so well rooted in authority, I consider it unnecessary to encumber this decision with various pronouncements of the Supreme Court on the point. I, however, cannot resist the temptation of extracting here an oft quoted passage from the famous speech of Lord Asquith in East End Dwelling Co. Ltd. v. Fins bury Borough Council, (1951) 2 All England Reports 587 at 599 (HL): "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.........The statute says that you must imagine a certain state of affairs ; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollories of that state of affairs." 7. Applying the above dictum to the instant case, it must follow that a notice given under Section 106 of the Transfer of Property Act shall be deemed to comply with the requirements of a valid notice under Section 4 (2) of the 1972 Act. Where the law requires that A shall be deemed to be B, compliance with A is in law compliance with B. 8. In this connection a subsidiary contention raised by the learned counsel was that after the death of B. L. Mehra, the Prescribed Authority did not serve any notice on his heirs under Section 4 of the 1972 Act which, according to the learned counsel was mandatory. The argument is misconceived. The heirs of B. L. Mehra had stepped into the shoes of B. L. Mehra. A valid notice having been served or deemed to have been served on B.L. Mehra determining his tenancy, no further notice was required to be served on his heirs. That takes me to the third and the last submission urged in support of the petition. The contention was that after the death of B. L. Mehra no steps were taken to bring on record his heirs and consequently the suit/ proceeding must be deemed to have abated. It was alleged that this plea was taken before the appellate court but the same was not considered by it. 9. There is no merit in this contention either. It was alleged that this plea was taken before the appellate court but the same was not considered by it. 9. There is no merit in this contention either. The assertions of fact made in the supplementary affidavit in support of the aforesaid contention have been specifically controverted in the supplementary counter affidavit filed on behalf of the respondents. In paragraph 5 of the supplementary counter affidavit it has been asserted that the legal representatives of B. L. Mehra were duly substituted in his place. In paragraph 6 of the supplementary counter affidavit, it is added that as the petitioner Shamlal Mehra son of B. L. Mehra alone was residing in the building in question at the time of the latter's death, he alone was substituted. In the same paragraph it is further stated that before the lower appellate court all the heirs were parties and that neither the petitioner nor any other legal representative raised any objection with regard to the competence of the proceedings after the death of B. L. Mehra. Indeed the petitioner himself had filed the appeal before the lower appellate court which affirmed the decree of the trial court. The formal defect, if any, in the proceedings thus stood cured in any case. The allegation in the supplementary counter affidavit that some affidavit was filed marked as annexure 2 to the supplementary affidavit before the Prescribed Authority pointing out the defect in the frame of the proceedings, was filed has been denied in the supplementary counter affidavit. A supplementary rejoinder affidavit has been filed reiterating the assertions made in the supplementary affidavit. I, however, see no ground for rejecting the supplementary counter affidavit filed by Sri Ajit Kumar Singh with regard to the assertions made therein. In any case, the petitioner having himself filed the appeal before the lower appellate court, I am not persuaded to quash the impugned orders on this ground, which is at best formalistic. 10. In the premise, the petition is liable to be dismissed. However, looking to the fact that the tenancy is very old it seems necessary in the interest of justice to allow some time to the petitioner to vacate the premises, subject, of course, to the petitioner's giving an undertaking that he will hand over vacant and peaceful possession to the respondents within the time mentioned below. However, looking to the fact that the tenancy is very old it seems necessary in the interest of justice to allow some time to the petitioner to vacate the premises, subject, of course, to the petitioner's giving an undertaking that he will hand over vacant and peaceful possession to the respondents within the time mentioned below. Before concluding, I may add that the suit was filed in 1966, ostensibly to accommodate the Forest Department. A quarter of a century has since elapsed. If, therefore, the Department no longer needs the accommodation for the purpose for which the suit for eviction was filed, the Prescribed Authority may consider whether the petitioner should still be asked to vacate the accommodation. What I wish to stress is that if the petitioner makes a representation before the respondents that the order of eviction may not be enforced in the changed circumstances, the respondents nos. 1 and 3 may give due consideration to the same. This should not, however, be treated as a direction by this Court. The observations have been made merely to indicate that if the petitioner makes a representation the same may be considered on its merits and it will be for the authorities to take whichever decision they consider right and proper. 11. In the result, the petition fails and is dismissed. But, if the petitioner files an affidavit within three weeks giving an unconditional undertaking that he will hand over vacant and peaceful possession to the Prescribed Authority and deposit with him the entire arrears of rent/damages due uptodate as awarded under the impugned orders as well as damages calculated at the rate awarded thereunder for the period from the date of judgment to June 30, 1990 within one month from today, the order for eviction may not be enforced against the petitioner until June 30, 1990. The petitioner's representation, if filed within 15 days, may, however, be disposed of by the Prescribed Authority within 3 months thereafter. No order as to costs.