SHANTI DEVI v. SHAKTI METALS KANPUR — 1996 DIGILAW 956 (ALL)

R. H. ZAIDI, J. In this case since counter and rejoinder affidavits were filed by the parties. On the request made by the learned Counsel for the parties, the peti tion was directed to be heard finally. It was on 29-8-96, the writ petition was allowed and the operative portion of the judgment was dictated in the open Courts which reads as under: "the writ petition succeeds and is allowed. The order passed by the Chief Metropolitan Magistrate-Vth, Kanpur, dated 17-9-94 is quashed. The case is sent back to the respon dent No. 3 for decision afresh in the light of the observations made above. The case will be decided within a period of two months from the date a certified copy of the order is produced before the respondent No. 3. Till then the respondent No. 2 shall not be dispossessed from the premises in question. " 2. I hereunder state the reasons for the above noted order: By means of this petition this petitioner prayed mainly for the following reliefs: (i) to issue writ, order or direction in the nature of certiorari quashing the impugned order dated 17-9- 94; (ii) to issue a writ, order or direction in the nature of mandamus directing the respondent Nos. 1 and 2 to pay a suitable and adequate amount by way of penalty of compensation for having initiated frivolous proceeding under Sec tion 23 of the Act and for withholding the pos session of the accommodation beyond 31-3-1994; (iii) to issue writ, order or direction in the nature of mandamus directing him to execute the orders passed under Sections 21 and 22 of the Act in favour of the petitioner forthwith and without any delay; (iv) to issue a writ, order or direction in the nature of certiorari quashing the plaint in Civil Suit No. 531 of 1994, Smt. Sudesh Tulwar v. Shanti Devi, pending in the Court of Munsif City, Kanpur. 3. The facts, which are relevant for resolving controversy involved in the case, are that the petitioner filed an application under Section 21 (l) (a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. XIII), for short the Act for release of the building No. 68/25, Lukman Mohal, Kan-pur (hereinafter referred to as the building in question) against respondent No. 1. The building in question was taken on rent, before 1976 for running the business in the name and style M/s. Shakti Metals by Sri Moti Lai claimed himself to be the sole proprietor of the said firm. Since the build ing in question was needed for the petitioners personal use and occupation the release application was filed. The respondent No. 1 contested the release application, and filed his written state ment on 24-4-1987. In support of their respective cases the parties adduced evidence in the said case. The Prescribed Authority allowed the release application byitsjudgmentand order dated 28-9- 1988. 4. Aggrieved by the order passed by the Prescribed Authority, the respondent No. l filed Rent Appeal No. 54 of l986. 5. During pendency of the aforesaid rent appeal the respondent No. 1 entered into compromise on 6-2- 1991 with the petitioner and agreed to vacate the build ing in question subject to the condition that he was permitted to occupy the same by 31st March, 1994. The petitioner granted requisite time to the respondent No. 1 and ultimately an application was filed before the Appellate Authority for deciding the appeal in terms of com promise. On the basis of the said applica tion the appeal was directed to be decided in terms of compromise. 6. On the strength of the aforesaid compromise and the order passed by the appellate authority, the respondent No. 1 continued to remain in possession of the building in question till 1994. On expiry of the time granted by the Court to vacate the building in question, the building was not vacated by the respondent No. 1. The petitioner, therefore, was obliged to file an application under Section 23 of the Act, for execution of the release order as con firmed by the appellate authority. The said case was registered as Misc. Case No. 1/23 of 1994. The respondent No. 1 did not contest the said rase but apparently set up his wife Smt. Sudesh Talwar, opposite party No. 2 to oppose the application filed by the petitioner, 7. The respondent No. 2 filed an ob jection before the respondent No. 3 claim ing that the orders passed by the Prescribed Authority and the appellate authority were not binding upon her as she was not a party in the proceedings under Section 21 of the Act. The respondent No. 2 filed an ob jection before the respondent No. 3 claim ing that the orders passed by the Prescribed Authority and the appellate authority were not binding upon her as she was not a party in the proceedings under Section 21 of the Act. She also claimed that she was the proprietor of M/s. Shakti Me tals, therefore, she could not be evicted from the building in question. 8. The objection filed by respondent No. 2 was opposed by the petitioner who pleaded that the said objection was legally not maintainable, the objection was noth ing but a result of collusion between hus band and wife, with a view to defeat the order passed by the authorities under Sec tion 21 of the Act and also the claim of the petitioner. The opposite party Nos. 1 and 2 had no right to continue in occupation over the building in question, they were liable to be ejected in execution of the release order as confirmed by the appellate authority on expiry of the time having been granted to the respondent No. 1 to vacate the building in question. It was also pleaded that the opposite party No. 2 filed the Suit No. 35 of 1995 and succeeded in obtaining an ex. pane injunction for a limited period, which after the appearance of the petitioner in the said suit, was not extended by the Civil Court the petitioner also pleaded that there was no relationship of the landlord and tenant between the petitioner and the opposite party No. 2. Therefore, the respondent No. 2 was liable to be ejected in execution of the aforesaid orders. 9. The respondent No. 3 held that the respondent No. 2 was the proprietor of M/s. Shakti Metals and she not being a party to the proceedings under Section 21, therefore, was not liable to be ejected in execution of order passed under Section 21/22 of the Act. Having recorded the said findings the application filed by the petitioner for execution of release order was dismissed by the respondent No. 3. The petitioner, thereafter, filed the present petition for the relief noted above. 10. Learned Counsel for the petitioner submitted that respondent No. 3 had no jurisdiction to go behind the orders passed by the Prescribed Authority and appellate authority. He was under an obligation to execute the said orders. The petitioner, thereafter, filed the present petition for the relief noted above. 10. Learned Counsel for the petitioner submitted that respondent No. 3 had no jurisdiction to go behind the orders passed by the Prescribed Authority and appellate authority. He was under an obligation to execute the said orders. The Respondent No. 3 has acted illegally in allowing the objection filed by the respon dent No. 2 without recording any finding that there existed relationship of landlord and tenant between the parties. It was also urged that the respondent Nos. 1 and 2 were estopped from contending that they were entitled to continue in occupation of the building in question, after respondent No. 1 entered into compromise and en joyed the fruits of the compromise order passed by the Appellate Authority, by remaining in possession for more than 3 years after the order of ejectment was passed by the Prescribed Authority against the said respondents. It was also urged that the objection filed by respondent No. 2 was the result of collusion between the respondent Nos. 1 and 2. 11. On the other hand learned Coun sel for the contesting respondent urged that it was obligatory upon the respondent No. 3 to decide the objection filed by the respondent No. 2 and the same has been decided in accordance with law and that it has rightly been held that the respondent No. 2 was not liable to be ejected from the building in question on the basis of the order passed in the proceedings under Sec tion 21/22 of the Act against the respon dent No. 1. 12. I have considered the rival sub missions made by the learned Counsel for the parties and also perused the record. 13. Admittedly, the orders passed under Sections 21/22 of the Act, in favour of the petitioner became final. The build ing having been released in favour of the petitioner, the respondent No. 1 having failed to vacate the building in question on expiry of the time granted by the appellate authority by means of an order passed on the basis of the compromise. The petitioner was, therefore, legally entitled to make an application under Section 23 of the Act for execution of the release order. 14. Section 23 provides as under: "23. The petitioner was, therefore, legally entitled to make an application under Section 23 of the Act for execution of the release order. 14. Section 23 provides as under: "23. Enforcement of eviction order.- (1) The Prescribed Authority may use or cause to be used such force as may be necessary for evicting tenant against whom an order is made under Section 21 or an appeal under Section 22, as the case may be, or against any other person found in actual occupation, and for putting the landlord into possession. (2) Every order of the Prescribed Authority in proceedings under this Section shall be final. " 15. Under the aforesaid section the tenant against whom order of release is passed or any other person found in pos session are liable to be evicted. Any other person means a person on behalf of or at the instigation of the tenant or an un authorised occupant and not. a person in independent and lawful possession in his own right. 16. A reference in this regard may be made to the following cases: (1) Chhakki Lai v. Additional District Judge, 1977uprcc39. (2) Smt. Padma Devi v. Prescribed Authority, 1981 ARC (SN 7) 3. (3) Smt. Shahjahan Begum v. Prescribed Authority, 1982 (2) ARC 332. 17. Under Section 23 the Prescribed Authority is bound to give effect to the final order of release. It has got no juris diction to re-open the matter and to set at naught the final order of release, on the objection filed by a third party except a lawful occupant of the building. A refer ence in this regard may be made to the decision in Sayyad Asad Ullah Qazmi v. A. D. J. , Allahabad & Ors. , 1981 (1) ARC 543 (SC ). 18. In the present case the release order was passed by respondent No. 1 which has become final during pendency of the proceedings before the Prescribed Authority no objection was filed by Smt. Sudesh Talwar who is admittedly wife of Sri Moti Lal Talwar and is living with him. She has also not objected to the com promise entered into between the parties before the appellate authority. She has also not objected to the com promise entered into between the parties before the appellate authority. The appeal filed by Sri Moti Lal was decided and three years time was granted to Sri Moti Lal to vacate the building, till expiry of three years no objection was filed by the respon dent No. 2 and she being the wife of Sri Moti Lal and also occupant of the building in question enjoyed the fruits of the order of compromise passed in the appeal. It was on expiry of three years that respondent No. 2 filed an objection claiming that she was the proprietor of M/s. Shakti Metals. It was neither pleaded nor proved that there existed relationship of landlord and tenant between the petitioner and the respondent No. 2. It was also not pleaded and proved that respondent No. 2 had no knowledge of the proceedings under Sec tion 21 of the Act. The Prescribed Authority without applying its mind to the question as to whether there existed relationship of landlord and tenant be tween the parties Le. petitioner and tne respondent No. 2 and as to whether the possession of respondent No. 2 over the building in question was unauthorised or independent and lawful in her own right and as to whether the objection filed by respondent No. 2 was collusive, arbitrarily allowed the objection filed by respondent No. 2 and nullified an order passed under Sections 21/22 of the Act. The order passed by the respondent No. 3, is, thus, manifestly illegal and without jurisdiction. 19. Learned Counsel for the respon dent No. 2 has also placed reliance on the decision in M/s. Durga Prasad v. District Judge, Ghazipur, reported in 1994 ALR p. 388. The facts of the case are distinguish able. In the said case the landlord acquired a shop, during pendency of release proceedings which was situated adjacent to the shop in dispute. It was, therefore, rukd by this Court that need of the landlord having been satisfied, his prayer for release could not be granted. In the present case no other shop has been ac quired by the landlord but the residential portion of the building was converted into a shop for the reason there was no accom modation available to him to carry on the business and to earn his livelihood. In the present case no other shop has been ac quired by the landlord but the residential portion of the building was converted into a shop for the reason there was no accom modation available to him to carry on the business and to earn his livelihood. It is well settled in law that the landlord cannot be forced to the residential buildings or any portion thereof for business purpose. Therefore, the aforesaid authority is of no help to the petitioner. 20. In view of the aforesaid discus sion, the writ petition succeeds. The order passed by the Additional Chief Metropolitan Magistrate-Vth, Kanpur, dated 17-9-94 is quashed. The case is sent back to the respondent No. 3 for decision afresh in the light of the observations made above. The case will be decided within a period of two months from the date a certified copy of the order is produced before the respondent No. 3. Till then the respondent No. 2 shall not be dispossessed from the premises in ques tion. Petition allowed. .