Usha Singh v. Kamla Devi — 1996 DIGILAW 128 (ALL)

Judgment : S. C. Verma, J. 1. The controversy raised in the present petition is as to whether the alleged licensor and licensee without complying the first proviso of Section 2-A of U. P. Act No. XIII of 1972 (hereinafter referred to as 'the Act') would amount to creating a licence covered by the provisions of Section 2-A of the Act and the licensee if omits or refuses to vacate the building is liable for eviction in accordance with the provisions of Section 2-A (5) of the Act. 2. IT is necessary to state relevant facts and quote the provisions of Section 2-A of the Act. The landlady has set up the case that she is owner/landlady of house No. 373 situate in Mohalla Nai Basti, Lakhimpur Kheri. The owner and landlord of the adjoining two houses numbered as House No. 372 and 374 wanted to make certain constructions in House No. 372 and they being closely relate, the permission was granted to occupy part of the accommodation. The son of the landlady who was engaged in legal profession, retained some portion for his professional work and possession of the remaining accommodation in the disputed house was given to the petitioner. The landlady Smt. Kamla Devi served a notice on Smt. Usha Singh the petitioner with the allegation that the accommodation was permitted to occupy for three months with" effect from 20-7-1990 but the possession has not been delivered after three months and therefore, the possession may be delivered within one week of the service of the notice. It was further stated that the requisite joint intimation to be given to the District Magistrate, permitting her to occupy the accommodation, could not be given as he refused to sign the intimation. The said notice is contained in Annexure-C. A. 3 to the counter affidavit filed on behalf of Smt. Kamla Devi. Smt. Usha Singh the petitioner replied to the above notice and she claimed to be the owner of the disputed property. It was alleged that she had entered into an agreement for sale in respect of the house No. 372, 373 and 374 but fraudulently the opposite party No. 1 did not execute the sale deed in her favour in respect of house No. 373. 3. It was alleged that she had entered into an agreement for sale in respect of the house No. 372, 373 and 374 but fraudulently the opposite party No. 1 did not execute the sale deed in her favour in respect of house No. 373. 3. IN the above reply Smt. Usha Singh did not mention anything with regard to the refusal to sign the Joint intimation or with regard to the license having been given for three months to occupy the disputed house. 4. THE Prescribed Authority in proceedings under Section 2-A (5) read with Section 21 of the Act by order dated 23-12-1991 directed for the eviction of Smt. Usha Singh from the disputed accommodation and to deliver the possession to Smt. Kamla Devi. THE order of the Prescribed Authority dated 23-12- 1991 has been as sailed in the present writ petition mainly on the ground that no license as required under Section 2-A of the Act was granted after complying the requirements of First Proviso to Section 2- A of the Act and as such, the petitioner would not be a licensee for an action for her eviction being taken in accordance with the provisions of Section 2-A (5) of the Act. The relevant provisions of the Act are quoted below: "2-A. Special Provisions for short term license: (1) Notwithstanding anything contained in this Act a person occupying a building as owner or as tenant or in any other capacity (hereinafter in this section referred to as licensor) may permit any other person (hereinafter in this section referred to as licensee) to occupy for purely temporary residential accommodation for a period not exceeding three months without any order of allotment under Section 16: Provided that intimation of the grant of such license shall be given jointly by the licensor and the licensee to the District Magistrate within one month from the date of occupation of the building or part by the licensee: Provided further that the District Magistrate may by order, extend the maximum period of such temporary occupation up to 6 months in the aggregate (including the original period of occupation): Provided also that similar license shall not be granted again to any 6ther person in respect of the same building or part within a period of one year from the date of vacation of the building or part by the last licensee. (2) Such licensee shall not be deemed to be a tenant for purposes of Section 20, notwithstanding that he pays or is liable to pay rent for such occupation. (3) Such licensor shall not be deemed to have ceased to occupy such building or part within the meaning of Section 12 merely on the ground of having granted such license. (4) The District Magistrate shall not make an allotment under Section 16 in respect of the building or part vacated by the licensee except with the consent of the landlord. (5) If the licensee omits or refuses to vacate the building or part after the expiry of the period of license the licensor may make an application to the prescribed authority for his eviction, and the prescribed authority shall thereupon order his eviction, and its order shall be final: Provided that no order shall be made under this sub-section except after giving to the parties concerned a reasonable opportunity of being heard. (6) The provisions of Section 23 shall apply to an order made under sub-section (5) as if it were an order made under Section 21 or under Section 22. 5. THE non-obstante clause provides for overriding the other provisions of this Act and Sec. 2-A of the Act is m the nature of an exception to the provisions of Sections 12,13 and 16 of the Act. It empowers a person occupying a building as owner, as a tenant or in any other capacity (hereinafter called licensor) to permit any other person to occupy a residential accommodation for a purely temporary period not exceeding three months without order of allotment under Section 16 of the Act. 6. THE first proviso to sub-section (1) of Section 2-A makes it the liability of the licensor and licensee to jointly intimate the District Magistrate about the grant of the license within one month from the date of occupation of the building or part by the licensee. THE Second proviso to the said sub-section empowers the District Magistrate to extend the period of license for the aggregate period of six months by an order, (including the original period of occupation ). THE third proviso prohibits the creation of a fresh license in respect of the same building in favour of any other person during the period of one year from the date of vacation by the last licensee. THE third proviso prohibits the creation of a fresh license in respect of the same building in favour of any other person during the period of one year from the date of vacation by the last licensee. The breach of the provisions of the present proviso will have the effect of depriving the person admitted into the building of the status of a licensee. The use of the word 'shall' in the proviso with regard to the intimation of the grant of such licence, be given jointly by the licensor and licensee to the District Magistrate, makes it necessary. 7. THE provisions of sub-section (5) of Section 2-A empowers the Prescribed Authority on the application of the licensor to evict the licensee who refuses to vacate the building or part after the expiry of the period of license. THE order is required to be passed after giving opportunity to the licensee. 8. WHILE dealing with the provisions of Section 2-A of the Act in the case of Miss Asha Lata E. Robin v. Radh Swami Satsangi Sabha, Dayal Bagh, Agra 1982 Vol. (2) Allahabad Rent Cases, page 528, the Division Bench held as follows: "it is thus clear that the entire Section 2-A has been drafted with only one purpose in view i. e. to save such licenses from operation of Section 12 of the Act. The licence in the present case is not under Section 2-A. It is not alleged that the tenant and landlord gave any intimation to district Magistrate as required by the first proviso to sub-section (1 ). It is also not alleged that any extension of period of licence was obtained under the second proviso to sub-section (1 ). It cannot be said that the licence of the defendant was covered by Section 2-A of the Act. There is yet another aspect of the case. Assuming that the licence in favour of the defendant was governed by the Act, there was neither any intimation to the District Magistrate nor any extension granted by him as required by the first two provisos to sub-section (1) of Section 2-A of the Act. It will also be hit by Section 23 of the Contract Act. Thus it will be illegal and invalid. The defendant's possession under such a licence would be wrongful as a mere trespasser. She has no right to continue her occupation. It will also be hit by Section 23 of the Contract Act. Thus it will be illegal and invalid. The defendant's possession under such a licence would be wrongful as a mere trespasser. She has no right to continue her occupation. There is no provision barring a suit against a trespasser. In view of our findings that Section 2-A of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, does not apply to the licence of the defendant and even if it applied the licence was illegal and the suit was not barred, we do not think it necessary to go into the question of protection of Article 226 of the Constitution of India to the plaintiff and its properties. " Similar view has been taken by the learned single Judge in the case of Vishwa Mitra v. Prescribed Authority, Jaunpur and another, 1982 Vol (2) Allahabad Rent Cases page 571: "further, I should like to observe that in the instant case, there was no compliance with the Proviso to Section 2-A. Admittedly no joint intimation was given by the alleged licensor and the alleged licensed to the District Magistrate within one month from the alleged date of occupation of the accommodation in question by the alleged licensee. In my view taking into consideration the complete scheme of the Act and inasmuch as Section 2-A is admittedly a special provision which stands apart from the main draft and the scheme of the Act, and which enables the landlords to allow third party occupation without any allotment order, it is vital that the terms and conditions laid down in the said provision should be strictly construed. In the facts of the instant case, admittedly, no such joint letter was ever sent by the alleged licensor and the alleged licensee to the District Magistrate. In this view of the matter, I hold that the petitioner was not entitled to take recourse to Section 2-A (5) of the Act. " 9. ATTRACTING sub-section 5 of the Section 2-A, the petitioners have to establish that they had been inducted as licensees in accordance with the provisions as contained in Section 2-A, which lays down a detailed procedure for ascertaining the rule of a legal fiction, the purpose for which it has been created must be first fixed or ascertained. 10. " 9. ATTRACTING sub-section 5 of the Section 2-A, the petitioners have to establish that they had been inducted as licensees in accordance with the provisions as contained in Section 2-A, which lays down a detailed procedure for ascertaining the rule of a legal fiction, the purpose for which it has been created must be first fixed or ascertained. 10. IN the case of Narain Das v. Additional City Magistrate/r. C. and E. O,. Kanpur and others, 1992 Vol (1) Allahabad Rent Cases page 455, it is held, "section 2-A of the Act is a special provision for short term licence. Under this provisions a person occupying a building as owner or as a tenant or in any capacity may permit any other person to occupy for purely temporary residential purposes for a period not exceeding three months without any order of allotment under Section 16 of the Act. Whenever such a contingency arises then under the provision of the said Section the intimation is to be given to the District Magistrate jointly (emphasis sup plied) by the licensor and licensee within one month from the date of occupation, of the building. Admittedly in this case there was no joint intimation. It was only an intimation by the tenant to the District Magistrate, if there was any. So the intimation sent by the tenant was not in accordance with the provisions of the Act. Obviously this rendered the occupation of the licensee as unauthorised. Moreover the said defective application is said to have been sent by the tenant to the District Magistrate on 7-2-1991. After the expiry of three months its life came to an end automatically. There was neither any order passed by the District Magistrate nor there was any extension which could be done by him for a maximum period of six months in aggregate. Even this maximum period had expired. The vacancy was declared on 10-10-1991. On that date no proceeding under Section 2-A of t. v Act was pending in the eyes of law. The petitioner cannot claim benefit of the provisions of Section 2-A of the Act. Even this maximum period had expired. The vacancy was declared on 10-10-1991. On that date no proceeding under Section 2-A of t. v Act was pending in the eyes of law. The petitioner cannot claim benefit of the provisions of Section 2-A of the Act. " The learned counsel for the respondents on the other hand strongly placed reliance on the case of Avinash Chandra v. Prescribed Authority, Mathura and another 1993 (2) ARC page 241 as follows : "the facts giving rise to this petition are that respondent No. 2 filed an application on 7-1-1990 before the Prescribed Authority under U. P. Urban Buildings (Regulation of Let ting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) for eviction of the petitioner from the accommodation in dispute which consists of two rooms of house No. 286, Badal Kajipada, Sadar Bazar, District Mathura. A copy of the application has been filed as Annexure-1 to the writ petition. A perusal of the application will show that it was filed under Section 2-A (5) read with Sec. 21 (1) (a) of the Act. Respondent No. 2 stated that petitioner was allowed to occupy the two rooms in the ground floor for a short term of three months for purely residential purpose in the year 1980 by his father, Mahabir Prasad who expired on 18-4-1981 and after father's death he became Karta of the Joint Hindu Family being the only son and thus became landlord and owner of the property. Petitioner was requested to vacate the premises several times but he refused on one ground or other. He is occupying the building illegally without any right. It was stated specifically that no rent was accepted at the point of time. It was further stated that his family consists of 12 members and there h acute paucity of accommodation and the need of the landlord for the additional accommodation is genuine and bonafide and in case the petitioner is not found to be a licensee and cannot be evicted under Section 2-A (5) of the Act, the application may be allowed in the alternative under Section 21 (1) (a) of the Act. Now, the question for consideration is whether the licensee who is not occupying the building under a licence created under Section 2-A of the Act or cannot be deemed to be an authorised licensee under Section 14 of the Act, can also be evicted under sub-section (5) of Section 2-A of the Act. In my opinion, it will not be proper to restrict the operation of sub-section (5) of Section 2-A of the Act to the licences of the category detailed above. If the Prescribed Authority after considering the material on record comes to the conclusion that in a building which is covered under the provisions of the Act, anybody occupied the building or any part of it as licensee and the period of licence has expired it could pass an order of eviction. There is nothing in the language of sub-section (5) which may be said to be against the view that even the licensee to which Section 2-A and Section 14 not applicable can be evicted under sub-section (5 ). The legislative intent is more clearly manifested from other provisions of the Act. Under Section 16 (4) of the Act and Section 18 (3) of the Act, District Magistrate has been authorised to put back the landlord or the allottee in possession in case they could not be able to obtain possession of the building and for this purpose it could use such force as may be necessary. Similarly under Section 18 (3) in case the order under Section 16 or Section 19 is rescinded, the District Magistrate could on an application being made to him place the parties back in possession which they would have occupied but for such order. But under Section 2-A (5) the legislature has not entrusted the authority, of eviction of licensees after, expiry of licences, to the District Magistrate. The application has to be filed by the licensor before the Prescribed Authority. Thereafter the proviso to sub-section (5) provides that order shall not be made except after giving to the parties concerned reasonable opportunity of hearing. Sub- section (6) provides for execution of the order under Section 23. The legislature, thus, was fully conscious about the gravity and importance of the rights of licensees. Though sub-section (5) of Section 2-A of the Act deals with special provisions for short term licensees for eviction a full fledge enquiry has been contemplated. Sub- section (6) provides for execution of the order under Section 23. The legislature, thus, was fully conscious about the gravity and importance of the rights of licensees. Though sub-section (5) of Section 2-A of the Act deals with special provisions for short term licensees for eviction a full fledge enquiry has been contemplated. The other reason for taking the aforesaid view is that provisions of Sub-section (5) are independent and are not controlled by any other provision contained in Section 2-A of the Act. For applying sub-section (5) and sub-section (6) it is not necessary to refer to any other provision and in my opinion it has an independent place though within Section 2-A of the Act. The scheme and object of the Act also appeared to be that the buildings which are covered by the provisions of the Act should be made available to the Rent Control Authorities quickly and swiftly to cater to the heed of the public. In my opinion, the view expressed above is more nearer to the scheme and object of the Act. If a person continuing under licence from before 5-7-1976 can be evicted under sub-section (5 ). I do not find any reason why person who is admitted as licensee subsequent to that can also not be evicted under sub- section (5 ). It is note-worthy that Section 2-A though regulates the grant of short term licences but at the same time it does not contain any prohibition like Sections 11 and 13 which may render the license granted by the landlord illegal or un authorised. Though the license of the petitioner was created in 1980, it cannot be said that it was unauthorised. In my opinion, the prescribed authority was fully competent to pass an order under sub-section (5) of Section 2-A in favour of the licensor as the conditions stood satisfied. From the findings recorded, it is clear that the petitioner has never paid any rent. He is occupying the building as licensee and by notice dated 28-1-1987 his license was revoked and thus he was not legally entitled to continue in possession. " 11. From the findings recorded, it is clear that the petitioner has never paid any rent. He is occupying the building as licensee and by notice dated 28-1-1987 his license was revoked and thus he was not legally entitled to continue in possession. " 11. IN the case of Avinash Chandra (Supra) the learned single Judge while considering the scope of sub- section 5 of Section 2-A of the Act, the case of licensee who was not occupying the building under a license under Section 2-A held that the provisions of sub-section 5 of Section 2-A are independent and are not controlled by any other provision contained in Section 2- A of the Act. For compliance of sub- sections 5 and 6 it is not necessary to refer to any other provision of the Act. IN the opinion of the learned Judge it has an independent placed though place under Section 2-A of the Act. 12. THE learned single Judge in the aforesaid case has not considered the effect of non-compliance of the conditions laid down in the proviso for the grant of valid license in favour of the licensee. THE learned single Judge has also not considered the status of the licensee against whom proceedings for eviction under sub-section 5 of the Section 2-A of the Act could be taken. THE learned Judge has observed in taking the above view that for compliance of sub-sections 5 and 6 it is not necessary to refer to any other provision. Further according to the opinion of the learned Judge, it had an independent place though within Section 2-A of the Act. However, the learned Judge on the facts and circumstances of the case, held that as there is no other order of allotment in favour of the petitioner and in case his contention that he was admitted as a tenant in 1978 is accepted the creation of tenancy on his own showing was wholly illegal, and void in view of the prohibition contained in Sections 11 and 13 of the Act. This illegal possession so far as the authorities under the Act are concerned, is wholly illegal. In such a situation the extraordinary powers under Article 226 of the Constitution could not be extended to help a person occupying the building illegally. This illegal possession so far as the authorities under the Act are concerned, is wholly illegal. In such a situation the extraordinary powers under Article 226 of the Constitution could not be extended to help a person occupying the building illegally. The learned single Judge in case of Avinash Chandra (Supra) did not consider that requirements laid down under the first and second proviso to Section 2-A are essential and for eviction of a licensee under the provisions of Section 2-A a valid licence as required under the above provisions would be necessary. There is no consideration that intimation for creation of licence is necessary. 13. THE legislation in this regard is very clear that under special circumstances and in compliance of certain conditions of Section 2-A, occupation of a person after complying the first proviso of the Act has been made permissible. This safeguard provided in proviso to Section 2-A is to ensure that the landlord and the person who occupies the premises does not misuse and violate the provisions of the Act. Further as the duration to occupy the premises is only for three months, prior permission of the District Magistrate has not been made necessary, instead an intimation within one month of the occupation of the premises both by the landlord and licensee has been made compulsory. 14. THE opposite party No. 1 accepted that apart from the averments contained in notice that the landlord refused to sign the intimation which was required to be sent to the District Magistrate, has not placed any material to establish that the requirements of proviso-1 was complied. Further, in the present case it is clear that the opposite party No. 1, the alleged licensor intended to create licence as required under the provisions of Section 2-A and the grant of licence of any other kind had not been pleaded. In the present case no case has been set up that the petitioner was licensee from before 1976 and rights of the licensee were regularised under Section 14 of the Act. 15. THE provisions of Section 2-A had been enacted by the legislature under special circumstance for making provisions for creation of short term licence in specified condition and manner. In the present case no case has been set up that the petitioner was licensee from before 1976 and rights of the licensee were regularised under Section 14 of the Act. 15. THE provisions of Section 2-A had been enacted by the legislature under special circumstance for making provisions for creation of short term licence in specified condition and manner. Any occupant of a residential building admitting any other person into the residential building or part thereof without any order of allotment as well as the person occupying the building would have to be equally liable for prosecution under Section 3 of U. P. Act No. 28 of 1976 for breach of the provisions of Sections 11 and 13 and also could be held under Section 12 (3), to have ceased to occupy the building or part thereof. 16. THIS section, therefore, applies where a person is admitted as a licensee in the manner indicated therein, the breach of provisions of First proviso will have the effect of depriving the person occupying the building, the status of a licensee. A valid licence would come into existence only after joint intimation has been given to the District Magistrate about the grant of the licence within one month from the date of occupation of the building or any part thereof by the licensee. I am supported in my view by the decisions of Miss. Asha Lata E. Robin v. Radha Swami Satsang Sabha, (Supra), Vishwa Mitra v. Prescribed Authority (Supra) and Narain Das v. Additional District Magistrate (Supra ). The summary procedure for eviction as provided under sub- Section 5 of the Section 2-A is to a licensee which fulfills the requirement of the provisions of Section 2-A inasmuch as he has been inducted after complying the provisions of First and Second proviso to Section 2-A of the Act. 17. AS the provisions of Section 2-A have been enacted to meet certain special contingencies, it was the joint responsibility of the owner/landlord as also of the person who has been permitted to occupy the building to give intimation to the District Magistrate to get out of the rigours of Sections 11 and 13 of the Act and if a valid licence is created in accordance with the provisions of section 2-A necessary protection was provided in sub-clauses 2,3,4,5 and 6 of Section 2-A of the Act. 18. 18. THE learned counsel for the opposite parties had brought to my notice that suit for declaration of title with respect to house No. 373 being suit Number 153 of 1993 has been dismissed for want of prosecution and the same has not been restored so far. The above circumstance will not make any difference in so far as the provisions of Section 2-A of the Act are concerned which remained uncomplied. The learned Prescribed Authority has recorded a bald finding without any basis or material that Smt. Usha Singh obtained possession as a licensee sometimes in 1990 and she was liable for eviction after expiry of the term. As there was no valid licence and the occupation of Smt. Usha Singh was not in compliance of provisions of Section 2-A of the Act these summary proceedings for eviction under sub-clause (5) would not be available. 19. FOR the reasons stated above I am of the opinion that the petition is liable to succeed. The order of the Prescribed Authority dated 23-12-91 is quashed and the writ petition is allowed. However, there shall be no order as to costs. Petition allowed.