Tara Devi v. Rent Control and Eviction Officer — 1993 DIGILAW 361 (ALL)

JUDGMENT : S.P. SRIVASTAVA, J. 1. Being aggrieved by an order passed by the Rent Control and Eviction Officer, Dehradun where under in the proceedings u/s 16 of the Uttar Pradesh Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) the premises in dispute have been declared to be vacant and this vacancy has been notified fixing 17.5.1993 for consideration of the premises in question for allotment/release, the Petitioners have now approached this Court for redress seeking the quashing of the aforesaid order passers by Respondent No. 1. The Petitioners claimed that the premises in dispute had been let out to them by Colonel Khushhal Singh on 1.10.1975. According to them no rent receipt was issued to them by Col. Khushhal Singh who died in the year 1983 leaving behind Smt. Neelam Thapa, Ravi S. Thapa and Ramesh Thapa as his heirs. It has been asserted in para 7 of the writ petition that the Petitioners continued to reside in the premise in dispute with the consent of the landlord sod being the tenant or lessee in occupation of the building with the consent of the landlord before 5.7.1976 in the absence of any suit for their eviction having been filed against them, they became unauthorised licensee or tenant of the building. In para 8 of the writ petition the claim of the Petitioners is that since the landlord had allowed the premises in question to be occupied by the Petitioners and the said occupancy has been regularised on 5.7.1976, consequently, the Petitioners would be tenants by operation of law. 2. It appears from the record that the Petitioners had filed a salt being Suit No. 141 of 1990 against the landlords in the court of Munsif, Dehradun praying for a decree of declaration that they were continuing to be in possession of the premises in dispute as tenants since 1.12.1975 at a rental of Rs. 100/- par month and were entitled to the benefits of Section 14 of the Uttar Pradesh Act No. 13 of 1972 and the Defendants could not eject them from the premises in dispute otherwise then in accordance with law. 100/- par month and were entitled to the benefits of Section 14 of the Uttar Pradesh Act No. 13 of 1972 and the Defendants could not eject them from the premises in dispute otherwise then in accordance with law. Apart from the above relief, the Petitioners-Plaintiffs also prayed in that suit for a decree of permanent injunction restraining the Defendants either from dispossessing them from the property in suit otherwise than in accordance with law or be instrumental to any proceeding for their eviction. In the aforesaid suit the trial Court passed an order on 24.7.1990 for proceeding ex-parte against the Defendants and fixed 11.9.1990 for ex-parte beating. On 11.9.1990, the Plaintiffs examined Rajesh Kumar as PW-1 and closed their evidence. The trial court thereafter fixed 26.9.1990 for ex-parte arguments. The trial court ultimately appears to have decreed the suit in part granting the Plaintiffs a decree of prohibitory injunction only restraining the Defendants from evicting the Plaintiffs from the property in suit otherwise than in accordance with law and further restaining them from becoming Instrumental to the initiation of any eviction proceedings against them. 3. The Petitioners have, however, conveniently not filed the copy of the judgment of the trial court and have placed reliance only on the decree referred to above. 4. It further appears that the Petitioners Initiated proceedings u/s 30 of the Uttar Pradesh Act No. 13 of 1972 seeking permission to deposit the rent in court for the period 1.2.1990 to 31.12.1992 and for future periods alleging that they had paid rent upto 31.1.1990 but the landlord did not issue receipts and Rajendra Singh acting for and on behalf of the landlord bad refused to receive the rent. It may be noticed that the Petitioners had never come up with the case that they had attempted to pay the rent to the landlord by money order which had been refused. 5. It further appears from the record that on 23.2.1993 Sri R.D. Ismail moved an application before the Rent Control and Eviction Officer, Dehradun seeking allotment of the premises in dispute asserting that it was deemed to be vacant and available for allotment. The grounds on which it was asserted to be so available was that this accommodation was In the unauthorised occupation of the Petitioners. The grounds on which it was asserted to be so available was that this accommodation was In the unauthorised occupation of the Petitioners. On receipt of the aforesaid application the Rent Control and Eviction Officer appears to have Issued a notice to the Petitioners which was replied to on 10.3.1993 asserting that there was no vacancy and seven rooms, kitchen, two bathrooms, verandah and sahan in question was in their tenancy. Reference was made by the Petitioners to the decree passed in O.S. No. 141/1990. The Petitioners filed documentary evidence in support of the objections which consisted of the certified copies of the proceedings of Original Suit No. 141/1990. Misc. case u/s 30 of the Uttar Pradesh Act No. 13 of 1972, Khatauni and documents relating to mutation proceedings. It is significant to notice here that the Petitioners did not choose to file the copy of the judgment passed in O.S. D.O. 141/90. It is conspicuous by its absence. 6. The Rent Control and Eviction Officer thereafter appears for have Issued notice to the landlord also and proceeded in ascertaining the vacancy in accordance with the procedure prescribed therefore under the rules framed under Uttar Pradesh Act No. 13 of 1972. The parties led voluminous evidence and many affidavits were filed by them in support of their respective claims. 7. It was asserted on behalf of the landlord that Raj Pal Singh, the husband of the Petitioner No. 1 who was an Inspector of Police posted as Station House Officer, Thana Garhi Cantt was given a short term licence to live along with his wife and his brother-in-law in two rooms and utilised the bathroom and verandah without any rent. This was done according to the landlord in the year 1983. It was asserted that subsequently Raj Pal Singh forcibly occupied the rest of the accommodation in dispute subsequent to the death of the husband of Neena Thapa, one of the landlords in her absence. She had asserted before the Rent Control and Eviction Officer that inspire of her repeated requests Raj Pal Singh, who had been transferred to other district had not vacated the premises and ail the requests to his wife and brother-in-law to vacate the premises went in vain. 8. She had asserted before the Rent Control and Eviction Officer that inspire of her repeated requests Raj Pal Singh, who had been transferred to other district had not vacated the premises and ail the requests to his wife and brother-in-law to vacate the premises went in vain. 8. The Rent Control and Eviction Officer after carefully considering the evidence and the materials on the record came to the conclusion that a two-rooms suite had been given to Raj Pal Singh temporarily in June 1983. It was further found that no satisfactory authoritative evidence had been tiled by the occupant for establishing that they were in possession of the premises in dispute during the period 1973 to 1982-83. It was held that the occupants had failed to prove that they were continuing to be in possession of the premises in dispute since the year 1975. The Rent Control and Eviction Officer noticed that during the period 1978 to 1980 the disputed rooms were in the occupation of Major Bhatia which fact had not been disputed by the Petitioners. 9. The Rent Control and Eviction Officer, on au appraisal of evidence on the record concluded that it was in the year 1981-83 when Raj Pal Singh, the husband of the Petitioner No. 1 had been transferred to Lucknow that the rooms in question had been given to accommodation the Petitioners by way of short term licence on the request of Raj Pal Singh. The Rent Control and Eviction Officer further came to the conclusion that the wife of Raj Pal Singh as well his life brother-in-law were occupying the premises in dispute at the instance of Raj Pal Singh and since Raj Pal Singh had been transferred from the Dehradun the premises in dispute were to be deemed to have become vacant u/s 12 (3) (3-A) of Uttar Pradesh Act No. 13 of 1972. 10. Consequently, the accommodation in dispute was declared vacant and this vacancy has been notified under the impugned order. 11. I have heard Sri G.N. Verma in support of the writ petition at considerable length. I have also heard Sri K.K. Arora who has appeared for the caveators and have carefully perused the record. 12. 10. Consequently, the accommodation in dispute was declared vacant and this vacancy has been notified under the impugned order. 11. I have heard Sri G.N. Verma in support of the writ petition at considerable length. I have also heard Sri K.K. Arora who has appeared for the caveators and have carefully perused the record. 12. While assailing the impugned order the learned Counsel for the Petitioner has urged that the Rent Control and Eviction Officer had no jurisdiction to declare the premises in dispute as vacant u/s 12 (3) (3-A) of the U. P Act no 13 of 1972. The contention raised is that Section 12 (3) (3-A) of the Uttar Pradesh Act no 13 of 1972 could not be deemed to have been attracted in the facts end circumstances of the present case as according to the landlords themselves the status of Raj Pal Singh was not that of a tenant. Reference in this connection was made to a letter issued by Neena Thapa addressed to the District Magistrate, Dehradun wherein it had been asserted that Inspector. Raj Pal Singh through Tara Devi had usurped her house and rooms which had been given to them on humanitarian grounds. A true copy of the aforesaid letter has been filed as Annexure 5 to the writ petition. Learned Counsel has contended that when according to the landlords themselves the status of Raj Pal Singh had never been that of a tenant the question of declaring vacancy u/s 12 (3) (3-A) of the Act could not arias the provisions contained therein covered the cases of tenants only. 13. While considering the above submission it has to be noticed that as observed by the Apex Court in its decision so the case of Peerless General Finance and Investment Co. Limited and Another vs. Reserve Bank of India, (1992) 2 SCC 343 , when an authority takes action which is within Its competence. It cannot be held to be invalid merely because it purports to be made under a wrong provision if it can be within its power under any other provisions. Further it cannot be lost sight of that whether a deemed vacancy has come into existence is an inferential fact to be deduced from the proved facts and this question about the accrual of vacancy in inspect of the accommodation in dispute has to be determined in this light. 14. Further it cannot be lost sight of that whether a deemed vacancy has come into existence is an inferential fact to be deduced from the proved facts and this question about the accrual of vacancy in inspect of the accommodation in dispute has to be determined in this light. 14. As has already been noticed above the Rent Control and Eviction Officer has, on an appraisal of the evidence and the materials produced by the parties before him recorded a clear cut finding that the Petitioners had occupied the premises In dispute in the year 1982-83 in contravention of the provisions of the Uttar Pradesh Act No. 13 of 1972. The case of the Petitioners that the premises in dispute had been let out to them in the year 1975 has been disbelieved. Even according to the own showing of the Petitioners the premises in dispute had not been allotted in their favour. In such a situation the provisions contained in section 11 and Section 13 of the Act stood clearly attracted. The provisions contained in Section 11 of the Act prohibit letting of any accommodation except in pursuance of an allotment order issued u/s 16 the provisions contained In Section 13 of the Act Impose restrictions on occupation of a building without allotment or release, the effect of the provisions contained in Sections 11, 12, 13, 16 and 31 of the Uttar Pradesh Act no 13 of 1972 was considered by a Division Bench of this Court in the case of Geep Industrial Syndicate Limited vs. Rent Control and Eviction Officer, Allahabad, 1982 (1) ARC 585 and noticing that a conjoined reading of Section 11 imposes a prohibition on letting without an allotment order and Section 13 places restriction on occupation without allotment or release. It was observed that these two sections are required to be read together, it was further observed that reading these two sections, it would appear that neither can a landlord let out a premises without an allotment order nor can any one occupy it. The Division Bench went on to observe that no one could either let out any premises without an allotment order nor could any one occupy the same and that if any one occupies the premises without an allotment order he would not only be an unauthorised occupant but also liable to prosecution u/s 31 of the said Act. The Division Bench went on to observe that no one could either let out any premises without an allotment order nor could any one occupy the same and that if any one occupies the premises without an allotment order he would not only be an unauthorised occupant but also liable to prosecution u/s 31 of the said Act. The Division Beach of ibis Court was quite emphatic when it observed that the possession of such a person being unauthorised cannot be recognised in the eye of law and if cannot be of recognised in the eye of law there would be a vacancy. It was further claimed that this would entitle the Rent Control and Eviction Officer u/s 16 to pass an allotment Order. 15. The Apex Court in its decision in the case of Mohd. Azeem vs. District Judge Aligarh, 1985 (2) ARC 85, had an occasion to consider the Implications arising under the provision relating to deemed vacancy as contained in the Uttar Pradesh Act No. 13 of 1972. The Hon'ble Supreme Court In its above decision has observed that making available as much accommodation as possible for allotment to needy persons was the scheme under the Uttar Pradesh Act No. 13 of 1972. In the facts and circumstances of the case, therefore, on the facts established on the record it is evident that the Petitioners clearly fell within the category of unauthorised occupants The Rent Control Acts are necessary social measures, for the protection of tenants. The Rent Control laws have tried to balance the equity. Once the requisite grounds specified under the Act is made out the Rent Control and Eviction Officer had no discretion left to reject the application for allotment or release. Consequently, therefore, taking into consideration the effect of the mandatory provisions contained in Section 11 and Section 13 of the Uttar Pradesh Act No. 13 of 1972 and the legal position as clarified by the Division Bench of this Court in its decision In the case of Geep Industrial Syndicate Ltd. (supra) there can be no escape from the conclusion that the premises in dispute was to be deemed to be vacant and available for allotment and release. The fact of the accrual of vacancy, as hat already been indicated above in the context of the provisions contained in the Act is an inferential fact to be deduced from the proved facts. The fact of the accrual of vacancy, as hat already been indicated above in the context of the provisions contained in the Act is an inferential fact to be deduced from the proved facts. On the facts found by the Rent Control and Eviction Officer, the ultimate conclusion about the accrual of vacancy has to be sustained and the exercise of the power by the Rent Control and Eviction Officer under a wrong provision cannot be held to be invalid especially taking. Into consideration the effect of Sections 11 and 13 of the Uttar Pradesh Act No. 13 of 1972. The submission of the learned Counsel for the Petitioner is totally misconceived and is not at all acceptable. 16. It was next contended that the Rent Control and Eviction Officer as well as the landlords were bound to treat the Petitioners as tenants of the premises In dispute continuing in its occupation as such since 1.12.1975 in view of the decree passed in O.S. No. 141/90 referred to above I have examined this submission with care and find it to be without any merit. As has already been indicated above the Petitioners did not file the copy of the judgment passed In O.S. No. 141/90 either before the Rent Control and Eviction Officer or before this Court. They heavily relied upon the decree passed in the aforesaid suit this decree indicates that the relief of declaration sought for by the Petitioners in the aforesaid suit had not been granted to them. A relief which was not granted will be deemed to have been refused. Further as observed by the Apex Court in its decision in the case of Rameshwar Dayal vs. Banda (dead) through his LRs. 1993 (1) CRC 288, a decree should not be confused with 'judgment' which is defined by Section 2(9) of the CPC as the statement given by the Judge of the grounds of a decree or order The Apex Court pointed out in the above decision that the definitions of decree, order and judgment given in the Code show that the decree or order as the case may be, can come into existence only if there is an adjudication on the relevant issues, which conclusively determines the rights of the parties. In the present case the Petitioners have deliberately avoided the filing of the judgment of the suit no. In the present case the Petitioners have deliberately avoided the filing of the judgment of the suit no. 141/90, It is, therefore, not clear as to whether the trial court had even noticed the matters in controversy between the Petitioners and the landlord-Respondents, and there is nothing on the record to indicate that there has been any adjudication or decision on the matters which was necessary before granting any decree of declaration as claimed in the suit. Further the fact that the trial court had refused to grant the declaration sought for in the aforesaid suit leads to an Irresistible conclusions that in fact there had not been any adjudication or decision on the said matter. It may be noticed that Hon'ble Supreme Court in its aforesaid decision has laid considerable emphasis on the existence of a format expression of adjudication conclusively determining the rights of the parties with regard to the matters in controversy in the suit before any plea of res-judicata can be accepted In the circumstances of the present case, therefore, the Petitioners cannot derive any advantage from the decree passed in O.S. No. 141/90. Moreover the Rent Control and Eviction Officer was not a party to the suit. The jurisdiction vesting in the Rent Control and Eviction Officer as contemplated under Uttar Pradesh Act No. 13 of 1972 could not be curbed or taken away by any such decree as is relied upon by the Petitioners. The contention of the learned Counsel, for the Petitioner indicated above, has therefore, no merit and is rejected. 17. Learned Counsel for the Petitioner next contended that the Rent Control and Eviction Officer had no jurisdiction to initiate the proceedings u/s 6 of Uttar Pradesh Act No. 13 of 1972 on the basis of the application seeking allotment filed on 23.2.1993. The submission of the learned Counsel is that even according to the case of the landlord the premises in dispute had been allowed to be occupied by the Petitioners in the year 1983, therefore, a period of about eight years having elapsed from the date of occupation, the impugned action of the Rent Control and Eviction Officer stood clearly barred by time. Learned Counsel for the Petitioner, however, could not refer to any period of limitation prescribed under the Act or any other law during which alone an action u/s 16 of the Act could be taken by the Rent Control and Eviction Officer. in the absence of any statutory period of limitation having been prescribed in this regard, the learned Counsel for the Petitioner urged that such a period of limitation should be inferred from the provisions contained in Section 15 of the Act which casts a statutory obligation on the landlord to intimate vacancy to the District Magistrate within a period of seven days of the occurrence of such vacancy The learned Counsel further urged that the failure of the landlord to furnish the information within seven days as required u/s 15 of the Act is punishable u/s 31 of the Act and since the punishment prescribed is six months, the period of limitation for initiating criminal proceeding as provided u/s 461 Code of Criminal Procedure is one year, therefore, the period of limitation for taking action u/s 16 of the Act should be treated to be only one year from the actual date of the occurrence of vacancy. 18. On a careful consideration of the aforesaid submission, I find that it is based on a strained reasoning which does not flow from the provisions of the Uttar Pradesh Act No. 13 of 1972. It is to be noticed in this connection that where statutes are silent and remedy has to be sought by recourse to basic principles, it is the duty of the court to devise procedural rules by analogy and expediency. The unauthorised occupation of the Petitioners being continued in disobedience to a statute is against the rule of public policy underlying the Uttar Pradesh Act No. 13 of 1972 and cannot be allowed to persist except under statutory sanction akin to one contemplated u/s 14 of the Act which is lacking In such case as under consideration the question of limitation curbing the exercise of jurisdiction u/s 16 of the Act vesting in the Rent Control and Eviction Officer/District Magistrate cannot be inferred from the provisions contained in the Limitation Act which have been expressly made not applicable excepting Section 4, 6 and 12 thereof to the proceedings under the U P. Act No. 13 of 1972 as provided u/s 35 of the said Act. Moreover the continuance of the unauthorised possession/occupation in the context of the provisions contained in the Act furnishes a recurring cause of action and if at all, the starting point for computing any period of limitation has to be taken to be the date of receipt of the Information by the competent authority regarding the same. 19. The Petitioner clearly fell within the category to those persons who deliberately set out to break the law and, therefore, cannot expect to be aided in a court of justice. The present case, therefore, cannot be deemed to be a fit case for the intervention of the equity. 20. Learned Counsel for the Petitioner has further contended that the Petitioners were entitled to the protection envisaged u/s 14 of the Uttar Pradesh Act No. 13 of 1972 in the facts and circumstances of the present case to which a reference has already been made above, none of the requisite conditions contemplated u/s 14 of the Act can be deemed to have been satisfied. The case of the Petitioners contained in para 8 of the writ petition that they acquired the stilt us of tenants by operation of law is totally misconceived and baseless. 21. In view of my conclusions indicated herein before I am clearly of the opinion that the ultimate decision of the Refit Control and Eviction Officer cannot be held to be vitiated by any such error much less manifest error of law which may justify any interference therein while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India. 22. The writ petition is devoid of merits and is hereby, dismissed. 23. Learned Counsel for the Petitioners has however, sought for an indulgence of the Court praying that they may not be dispossessed from the premises in dispute till 30.6.1993. Considering the totality of the circumstances, I direct that the Petitioners shall not be dispossessed from the premises in dispute till 30.6.1993 provided they file an undertaking in writing before the Rent Control and Eviction Officer, Respondent No. 1 within tea days from today clearly indicating therein that they shall vacate the promises by 30.6.1993. In default of complying with the above condition this stay order shall cease to be operative and stand discharged. In default of complying with the above condition this stay order shall cease to be operative and stand discharged. It is, however, made clear that the Bent Control and Eviction Officer shall be free to proceed with the case and pass any allotment/release order in accordance with law which order if passed during the currency of the stay order shall not be given effect to till 30.6.1993. 24. A certified copy of this order may be supplied to the learned Counsel for the parties on payment of usual charges within three days.