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1999 DIGILAW 959 (ALL)

RADHA KRISHNA v. PRATAP NARAIN

1999-07-13

SUDHIR NARAIN

body1999
SUDHIR NARAIN, J. ( 1 ) THE applicant has prayed that the heirs of the petitioners be directed to redeliver the possession of the disputed accommodation to him. ( 2 ) THE facts relating to filing of this application are that Pratap Narain. respondent No. 1, was owner and landlord of the shops in question. Radha Krishna, petitioner No. 1, was a tenant of one of the shops carrying on business of sale of books and Mushtaq Ahmad. petitioner No. 2, was a tenant of another shop, carrying on business of sale of shoes, etc. The landlord filed an application under Section 21 (1) (b) of U. P. Urban Buildings (Regulation of Letting, Rent and eviction) Act, 1972 (in short the Act) against the petitioners on the ground that the shops in the tenancy of the petitioners were in a dilapidated condition and were required for the purpose of demolition and new construction. The parties entered into a compromise before the prescribed authority. They filed compromise application before him. It was agreed that the landlord will construct residential portion on the first floor and on the ground floor the shops will be constructed. Radha Krishna, petitioner No. 1, shall be provided shop of an area of 7 x 20 ft. and mushtaq Ahmad, petitioner No. 2. shall be provided with shop of an area of 7 x 20 ft. The construction shall be completed by 30th April, 1979 and if the possession is not given by the date fixed, the landlord shall pay damages at the rate of Rs. 50 per day and if the amount is not paid, it can be recovered through the Court. The petitioner vacated the shop. Respondent No. 1 did not construct the shop. They filed an application before the prescribed authority to issue a certificate for recovery of the amount in terms of the compromise under Rule 24 of the U. P. Urban buildings (Regulation of Letting. Rent and Eviction) Rules, 1972 (in short the Rules ). The prescribed authority allowed the application on 4th April, 1981 for recovery of the amount to the extent of two years rent. The tenant petitioners filed the present petition seeking modification of the order passed by the prescribed authority on the ground that they were entitled to Rs. Rent and Eviction) Rules, 1972 (in short the Rules ). The prescribed authority allowed the application on 4th April, 1981 for recovery of the amount to the extent of two years rent. The tenant petitioners filed the present petition seeking modification of the order passed by the prescribed authority on the ground that they were entitled to Rs. 50 per day till they were given the shops as agreed upon by the parties and it could not be confined only for a period of two years. ( 3 ) THE landlord-respondent filed a counter-affidavit admitting that the parties had entered into an agreement and a compromise application, as alleged by the petitioners, was filed before the prescribed authority and the case was decided in terms of the compromise. ( 4 ) DURING the pendency of the writ petition, the petitioners filed an application on 14th August. 1985 directing the landlord to hand over the shop which was reconstructed. Respondent No. 1 filed a counter-affidavit dated 12th September, 1985 denying that the shops were reconstructed. In paragraph 4 of the counter-affidavit, it was asserted as follows : "that the contents of paragraph No. 4 of the affidavit are denied and it is stated that every effort was made on behalf of the landlord to start reconstruction of the disputed property but the same could not be started on account of various factors beyond the control of the landlord. " ( 5 ) THE matter remained pending. The petitioners asserted that the shops have been reconstructed. On 14. 10. 1998. I directed respondent No. 1 to appear in person before this Court on 12. 1. 1999. He was also directed to put back the petitioner in possession of the shop in question which was agreed to be provided to the petitioners or to show cause by the aforesaid date. As the counsel for the respondent had made statement that he has no Instructions, the registry was directed to issue notice to respondent No. 1 and the case was directed to come up on 12. 1. 1999. The Registry sent a registered letter but the undelivered cover was not received back. It was held that the notice shall be deemed to have been served under Explanation 2 to Rule 12 of Chapter VIII of the Rules of the Court. On 3. 2. 1. 1999. The Registry sent a registered letter but the undelivered cover was not received back. It was held that the notice shall be deemed to have been served under Explanation 2 to Rule 12 of Chapter VIII of the Rules of the Court. On 3. 2. 1999 an order was passed directing the superintendent of Police Deoria to put the petitioners back in possession over the shops in question within one week from the date of production of a certified copy of the order along with true copy of the writ petition. In pursuance of the order passed by me, the heirs of petitioners have taken possession of the shops on 18. 2. 1999. ( 6 ) BENGALI Prasad Verma has filed this application to put him back into possession of the shops in question on the ground that he has purchased the shopping complex from respondent No. 1 through registered sale deed dated 3. 8. 1998 and, in fact, he was in possession of the shops in question on the date the possession was delivered to the heirs of petitioner No. 2. He had no knowledge regarding the pendency of the writ petition. The tenant-petitioners have filed counter-affidavit to this application. The question is whether the transferee from respondent No. 1 is entitled to restoration of possession of the shops in question. ( 7 ) SHRI Shasht Nandan, learned counsel for the applicant, contended that unless the shop is allotted to the tenant on an application being filed before the District Magistrate under sub-section (2) of Section 24 of the Act. the tenant is not entitled to take possession of the shops which is reconstructed after its demolition on order of release being passed under Section 21 (1) (b) of the Act. The tenant is required to file an application under Section 24 (2) of the Act after the landlord demolishes the building and reconstructs the new building after an order is passed by the prescribed authority under Section 21 (1) (b) of the Act. The District Magistrate has to consider the requirement of the tenant and after considering such requirement, he will pass the order for allotment of the shops. The District Magistrate has to consider the requirement of the tenant and after considering such requirement, he will pass the order for allotment of the shops. The emphasis is on the words "the District Magistrate 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 the requirement thinks fit. . . . . . " The District Magistrate under sub-section (2) of section 24 is only to consider the extent of the requirement but he cannot reject the application of the tenant on the ground that there is no requirement of the tenant to obtain the possession on the ground that after demolition of the building he has managed to obtain another accommodation. The prescribed authority allows application under Section 21 (1) (b) not on the ground that it was needed by the landlord for his personal use as provided under Section 21 (1) (a) of the Act but the tenant is evicted on the ground that the disputed accommodation is in a dilapidated condition and is required for the purpose of demolition and reconstruction. The order of eviction is not passed on the ground that the need of the tenant has extinguished or he has taken another. accommodation for his use and occupation. If a tenant is in occupation of a residential building, he or any member of his family builds or otherwise acquires in a vacant. state or gets vacated the residential building in the same city, he shall be deemed to have ceased to occupy the building in his tenancy under subsection (3) of Section 12 of the Act but if the tenant acquires a non-residential building the accommodation under his tenancy shall not be deemed as vacant. A tenant may carry on the business in many shops. If he was carrying on business in a shop which was got vacated only on the ground that it requires reconstruction as it is in a dilapidated condition, his requirement of the shop does not cease to exist. ( 8 ) IF the landlord after demolition of the existing constructions reconstructs the building, the tenant cannot claim that the entire reconstructed building should be given to him. ( 8 ) IF the landlord after demolition of the existing constructions reconstructs the building, the tenant cannot claim that the entire reconstructed building should be given to him. If the tenant was occupying smaller portion in the building, he cannot claim that bigger portion should be allotted to him. He is to indicate extent of his requirement as required under sub-rule (2) of Rule 20. Where there has been a contract between the landlord and tenant in respect of extent of the accommodation which is to be provided after the demolition of the existing construction and reconstruction of the building, the same shall be presumed to be requirement of the tenant which has been agreed upon by the landlord also. The applicant has not alleged any where that the landlord had not agreed to provide the accommodation to the tenants as agreed upon by them. ( 9 ) THE second submission of learned counsel for the applicant is that the application for allotment is to be filed within one month from the date on which the construction of the building sought to be allotted is complete. Rule 20 of the Rules read as under : "20. Application for re-allotment (Section 24 (2)]-- (1) An application by a tenant under sub-section (2) of Section 24 for allotment of a new building or any one of them shall be made within one month from the date on which the construction of the building sought to be allotted is complete. (2) The application shall also state the extent of the tenants requirements regarding accommodation. Explanation.--in this rule, the date of completion of construction has the same meaning as in the explanation (a) of sub-section (2) of Section 2. " ( 10 ) THE applicant has not stated anywhere the date on which the construction of the building was complete. (2) The application shall also state the extent of the tenants requirements regarding accommodation. Explanation.--in this rule, the date of completion of construction has the same meaning as in the explanation (a) of sub-section (2) of Section 2. " ( 10 ) THE applicant has not stated anywhere the date on which the construction of the building was complete. The date of completion of the construction of the building has to be determined as given in Explanation (a) of sub-section (2) of Section 2 of the Act which provides that the construction of the building shall be deemed to have been completed on the date on which the completion thereof reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied for the first time. The date of the completion of the construction is within the special knowledge of the landlord. It is for him. to indicate as to what is the date of completion of construction of the building. The tenant cannot apply for allotment before the District Magistrate under sub-section (2) of Section 24 of the Act unless the landlord gives notice to him regarding the date of completion or the tenant otherwise gets information regarding the date of completion of the construction. In State of Punjab v. Qaisar Jahan Begum, AIR 1963 SC 1604 . It was held that the limitation for filing application for reference under Section 18 of the Limitation Act starts only from the date when the award is either communicated to the party or is known by him either actually or, constructively. If the award was never communicated to the party and such party may have knowledge of the award but not the contents of the award still it will not be taken that he had knowledge of the award so as to file application for reference under Section 18 of the Act. The building may be constructed by a landlord after demolition but the tenant may not know when it was completed. ( 11 ) IN Madan Lal v. Smt. Parvati Devi. 1993 (1) ARC 315. The building may be constructed by a landlord after demolition but the tenant may not know when it was completed. ( 11 ) IN Madan Lal v. Smt. Parvati Devi. 1993 (1) ARC 315. the Court considering the question of limitation for making application for allotment under sub-section (2) of Section 24 of the Act held that if Rule 20 is enforced, literally it may result in irreparable harassment and prejudice to those who claim re-allotment under Section 24 of the Act. It was observed : "rule 20 should, therefore, be interpreted in such a manner that it may not lose its purpose and object and at the same time it may not defeat the purpose of Section 24 which preserves a valuable right and the claim of a tenant regarding allotment after demolition and reconstruction. In the circumstances, the completion of the building if reported to the local authority the landlord should also inform the tenant simultaneously calling upon him to take steps for allotment and, in case, in spite of such intimation the application is not moved by the tenant for allotment under sub-section (2) of Section 24 of the Act within 30 days, he may be deprived of this valuable right. " ( 12 ) THE District Magistrate can also otherwise condone the delay in filing the application as section 5 of the Limitation Act is applicable to the proceedings under the Act. Section 35 of the act provides that the provisions of Sections 4, 5 and 12 of the Act shall mutatis mutandis apply to all proceedings under this Act. ( 13 ) IN the facts of the present case, as noted above, the petitioners had filed application for delivery of possession on the ground that the shops have been constructed. Respondent No. 1, in para 4 of his counter-affidavit denied that the shops have been constructed. ( 14 ) IT is further urged that I passed the order for delivery of possession of the shops in question under misapprehension that this Court had passed an order on 14. 10. 1988 for delivery of possession. I have perused the order dated 14. 10. 1988. ( 14 ) IT is further urged that I passed the order for delivery of possession of the shops in question under misapprehension that this Court had passed an order on 14. 10. 1988 for delivery of possession. I have perused the order dated 14. 10. 1988. It is true that there was no specific direction for re-delivery of possession but later on when I passed an order in 1988, I gave show cause notice to respondent No. 1 why the possession be not directed to be delivered to the tenants. It was open for respondent No. 1 to show cause but none appeared on his behalf. Counsel for the respondent made statement that he has no instructions. 1 considered the merit of the case. Respondents No. 1 had filed counter-affidavit and in that counter-affidavit, it was not denied that he did not file the compromise application, a copy of which was annexed as annexure-1 to the writ petition. Considering all the aspects, respondent No. 1 was directed to deliver the possession. The applicant has also not denied that under the terms of the compromise, the landlord was required to construct the shops after demolition and hand over to the tenant-petitioners. The applicant claims himself to be bona fide purchaser for value from respondent No. 1 by a registered sale deed dated 3. 8. 1998. As the writ petition was pending, he is bound by all the orders passed in the writ petition and cannot escape his liability merely on the ground that he is purchaser of the property without any knowledge of the proceedings of the writ petition. ( 15 ) THE petitioners, however, were to file an application for allotment under sub-section (2) of section 24 of the Act. The petitioners have died. It is necessary for their heirs to file an application for allotment under Section 24 (2) of the Act and if so advised, with an application to condone the delay in filing the application. In case they do not file any application or no allotment order is passed in their favour, they will be liable to re-deliver the possession of the shops. In case they file an application for allotment within three weeks from today, the District magistrate shall pass an appropriate order keeping in view the observations made above and in accordance with law within two months. In case they file an application for allotment within three weeks from today, the District magistrate shall pass an appropriate order keeping in view the observations made above and in accordance with law within two months. ( 16 ) THE application is accordingly disposed of.