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2010 DIGILAW 2481 (ALL)

CHANDRA MOHAN SAMA v. BANWARI LAL GHAI

2010-08-13

RAKESH TIWARI

body2010
JUDGMENT RAKESH TIWARI, J.--Heard Counsel for the parties and perused the record. 2. The petitioner claims himself to be tenant of house, F-48, Shanti Nagar, Kanpur Nagar since 1975 without there being any allotment order. It appears that respondent No.2 moved an application for declaration of vacancy and for allotment on the ground that petitioner is an unauthorised occupant. Objections were filed by the petitioner and he also filed certain rent receipts. 3. The Prescribed Authority vide its order dated 21.2.2005 held that petitioner occupied the property in 1975 and that there is no allotment order in his favour. The property was released in favour of the landlord vide order dated 28.12.2005. Revision filed by the petitioner has also been dismissed by order dated 10.4.2009 by the Revisional Court. 4. Contention of the Cotlnsel for petitioner is that even if finding of the Prescribed Authority is upheld that petitioner is an unauthorised occupant and he occupied the property in 1975, even then the proceedings were not maintainable after 21 years and were barred by period of limitation. It is on these grounds that this petition has been filed. No other point has been argued. 5. Counsel for the petitioner has relied upon three judgments of this Court. First decision relied on by the Counsel is Munna Lal Agrawal v. Rent Control and Eviction Officer/City Magistrate, Mathura and others,1 in which three shops in dispute were let out without allotment order, hence the Prescribed Authority declared the vacancy. Court held that proceedings for release initiated by the landlord after reasonable period of time suffer from vice of limitation. The Full Bench decision in Nootan Kumar v. A.D.J.2 was in operation at that time. It may be pointed out at this stage that judgment in Nootan Kumar's case (supra) has been set aside by the Apex Court in 2005 (2) ARC 665. The Court in paragraph No.9 of the judgment, has held that after reversal of the Full Bench judgment by the Supreme Court, entire scenario has changed and now agreement is binding between the landlord and tenant and landlord can file suit for eviction on the grounds mentioned under section 20 (2) of the Act and also release application under section 21 of the Act on the ground of bona fide need. 1. 2004 (57) ALR 676. 2. 1993 (22) ALR 437 (FB). 6. 1. 2004 (57) ALR 676. 2. 1993 (22) ALR 437 (FB). 6. In the second decision relied on by the Counsel for petitioner Rajdhari v. Smt. Ranjana Gupta and another,1 eviction of the tenant was also sought on the ground of vacancy and it was argued that limitation of 12 years will have to be read. Proceedings for eviction of unauthorised occupant were initiated after 21 years from the date of unauthorised occupation and it was held that proceedings for eviction on the ground of vacancy after such period is not maintainable and liberty was given to the landlady to seek eviction on the grounds available to her in-law. 1. 2006 (63) ALR 677. 7. Last case cited by the Counsel for petitioner is Anil Kumar Dixit v. Maya Tripathi and another.2 In that case also building was let out without allotment order and it was held that it may be deemed to be vacant and open to allotment as agreement of letting is not binding upon Rent Control and Eviction Officer. In paragraph No.5 and 7 this decision, it was held in view of section 12 and 16 of the Act, there was no limitation for initiating proceedings but application is to be filed within a reasonable period of time. 2. 2006 (62) ALR 383. 8. Learned Counsel for the respondent has urged that finding of the prescribed authority that there was vacancy while allowing the release application, has been confirmed by the Revisional Court in Rent Revision No.3 of 2006, Chandra Mohan Sarna v. Banwari Lal and others. 9. It may be noted here that aforesaid revision was allegedly dismissed ex parte vide judgment and order dated 10.4.2009 and the petitioner has moved application dated 15.5.2009 for setting aside and recall of the order dated 10.4.2009 and restoring the revision to its original number. This application is pending. 10. In Smt. Jamuna Devi v. District Judge, Kanpur Nagar and others,3 relied upon by the Counsel for respondent, the Court considered provisions of section 12 (1) and 16 (2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, and the order declaring the vacancy and release of premises in favour of landlord-respondent. This application is pending. 10. In Smt. Jamuna Devi v. District Judge, Kanpur Nagar and others,3 relied upon by the Counsel for respondent, the Court considered provisions of section 12 (1) and 16 (2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, and the order declaring the vacancy and release of premises in favour of landlord-respondent. Petition was filed by the petitioner (tenant) on the ground that she was residing in the disputed premises for more than 20 years and erstwhile landlord had not initiated any action nor sent any notice for initiating any action against the petitioner and she was being evicted by respondent-builders who was trying to grab the property evicting the petitioner. The Court in those peculiar circumstances, held that Rent Control and Eviction Officer had failed to consider the real question as to bar of the proceedings; that landlord during all these years had not taken any action against the petitioner and that rent was being regularly paid to the landlord who had no grievance at all, hence the release application filed by the builders was quashed. It may be noted here that decision in Anil Kumar Dixit (supra), cited by the Counsel for petitioner as well as decision of the Apex Court in Mansa Ram v. S.P. Pathak and others,4 were considered in this case. 3. 2008 (73) ALR 434= 2009 (10) ADJ 607 . 4. 1984 (1) ARC 17. 11. Further contention of the Counsel for respondent is that petitioner has filed before this Court a photo copy of his driving licence as Annexure No.5 to this petition to establish the fact that he was tenant of the building in dispute. He submits that from its perusal, it is clear that driving licence is of one Chandra Mohan and not of Chandra Mohan Sarna-the petitioner. The address given in the Driving Licence is resident of Shashtri Nagar, Kanpur whereas the petitioner in the Courts below has given his address as F-48, Shanti Nagar, Kanpur Nagar. He has vehemently argued that the person whose driving licence has been filed as Annexure No.5, is a different person from the petitioner. Admittedly, this driving licence was not filed before the Courts below. 12. He has vehemently argued that the person whose driving licence has been filed as Annexure No.5, is a different person from the petitioner. Admittedly, this driving licence was not filed before the Courts below. 12. As regards limitation is concerned, Counsel for the respondent has urged that limitation will not come in the way in filing release application as petitioner being an unauthorised occupant of the building, there is recurring cause of action. 13. Having heard Counsel for the parties and on perusal of the record, it appears that there is positive discrepancy in the name and address of the petitioner Chandra Mohan Sarna as is apparent from Annexure No.5 filed by him. 14. In the cases of Anil Kumar Dixit (supra) and Rajdhari (supra) relied upon by the Counsel for petitioner, the Court has categorically held that a building which is let out without allotment order is deemed to be vacant and is open to allotment as the agreement of letting is not binding upon Rent Control and Eviction Officer. However as regards limitation is concerned, the Court has held that Dunder sections 12 and 16 of the Act, there is no limitation for initiating the proceedings but application is to be filed within a reasonable period of time and period of 12 years should be taken as reasonable time for initiating proceedings. 15. In the decision in Munna Lal Agarwal's case (supra), the Court was considering the effect of judgment in Nootan Kumar's case which was set aside by the Apex Court as has been noted in paragraph No.9 of the judgment. 16. What should be taken as reasonable time would, therefore, depend on facts and circumstances of each case. 17. In my considered opinion, once the provisions do not provide for any specific limitation, then cause of action would not be barred by limitation. An unauthorised occupant cannot be clothed with legal right to remain in possession of the building, for it is to be allotted by Rent Control and Eviction Officer in accordance with law. The petitioner in this case came into unauthorised occupation in the year 1975, if he was in unauthorised occupation since 1975 as claimed by him, it cannot be regularised and is bound by the provisions of the Act. 18. In The Bombay Gas Co. The petitioner in this case came into unauthorised occupation in the year 1975, if he was in unauthorised occupation since 1975 as claimed by him, it cannot be regularised and is bound by the provisions of the Act. 18. In The Bombay Gas Co. Ltd. v. Gopal Bhiva and others,1 the Apex Court has held that Court has no power to fix any limitation where it is not provided in the statute as this would amount to legislate the statute. In this regard, paragraph No. 13 of this decision is quoted below: "In dealing with this question, it is necessary to bear in mind that though the legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf, it has omitted to make any provision for limitation in enacting section 33-C (2). The failure of the legislature to make any provision for limitation cannot, in our opir ion, be deemed to be an accidental omission. In the circumstances, it would be legihmate to infer that legislature deliberately did not provide for any limitation nder section 33-C (2). It may have been thought that the employees who are entitled to take the benefit of section 33-C (2) may not always be conscious of their rights and it would not be right to put the restriction of limitation in respect of claim which they may have to make under the said provision. Besides, even if the analogy of execution proceedings is treated as relevant, it is well known that a decree passed under the Code of Civil Procedure is capable of execution within 12 years, provided, of course it is kept alive by taking steps in aid of execution from time to time as required by Article 182 of the Limitation Act; so that the test of one year or six months limitation prescribed by the Payment of Wages Act cannot be treated as a uniform and universal test in respect of all kinds of execution claims. It seems to us that where the legislature has made no provision for limitation, it would not be open to the Courts to introduce any such limitation on grounds of fairness or justice. It seems to us that where the legislature has made no provision for limitation, it would not be open to the Courts to introduce any such limitation on grounds of fairness or justice. The words of section 33-C (2) are plain and unambiguous and it would be the duty of the Labour Court to give effect to the said provision without any considerations of limitation. Mr. Kolah no doubt emphasised the fact that such belated claims made on a large scale may cause considerable inconvenience to the employer, but that is a consideration which the legislature may take into account, and if the legislature feels that fair play and justice require that some limitation should be prescribed, it may proceed to do so. In the absence of any provision, however, the Labour Court can not impart any such consideration in dealing with the applications made under section 33-C (2)." 1. AIR 1964 SC 752 . 19. The cases cited by the Counsel for petitioner is decision of co-ordinate Bench presided over by learned Single Judge whereas the ratio in Bombay Gas's case (supra) has binding effect under Article 141 of the Constitution. 20. It may also be noted that decision of Smt. Jamuna Devi's case cited by the Counsel for respondent is dated 19.9.2008 and since the matter of limitation is pending before the Supreme Court, I am of the opinion that in the facts and circumstances the question of limitation would not arise and the release application has rightly been allowed by the prescribed authority. 21. Since this Court has already heard the petitioner on merits of the judgments passed by the prescribed authority as well as Revisional Court, hence remanding the matter on restoration application would be a futile exercise. 22. If limitation of 12 years as reasonable period is read in the provision of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, though there is a definite lack of legislative intent in the Act in this regard, it would amount to permitting illegal occupants to grant legal sanction to their acts. Occupation of building without allotment would frustrate the regulatory provisions of the Act and not germane to the object for which the Act was legislated. 23. Occupation of building without allotment would frustrate the regulatory provisions of the Act and not germane to the object for which the Act was legislated. 23. It may in circumstances be also misused or misutilised e.g. if an influential powerful person or mafia occupies a building or portion thereof by force of muscle power/State power then the landlord would never be able to move any application for release for fear of him and his family. There can be other such examples also, hence in my considered opinion, limitation should not be read where it is not specifically provided for. 24. For all reasons stated above, the writ petition fails and is accordingly dismissed. No order as to costs. Petition Dismissed.