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2013 DIGILAW 231 (ALL)

SAROJ TYAGI v. GURMEET SINGH

2013-01-18

SUDHIR AGARWAL

body2013
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Dharam Pal Singh, learned Senior Advocate assisted by Sri Rajeev Trivedi, Advocate for the petitioners and Sri Manoj Kumar, Advocate appearing for the respondent. 2. The judgment and order dated 28.4.2006 passed by Additional District Judge, Court No. 14, Moradabad in purported exercise of powers under Section 19 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the “Act, 1972”) revoking release order dated 15.5.2004 in respect to property in dispute, namely, a shop situated at Mohalla Chowk Tadi Khana, Tyagi Market Court Road, Moradabad has given rise to the present writ petition. 3. Petitioners are landlords of the shop in dispute. 4. The facts, in brief, are that Sri Dhirendra Kumar Tyagi, [now deceased and substituted by petitioner No. 1 (wife), petitioner No. 2 (son) and petitioner Nos. 3 and 4 (daughters)] let out the shop in dispute to one Kishan Lal on rent who closed his business sometimes in the year 2003 and intimated Rent Control and Eviction Officer, Moradabad (hereinafter referred to as the “RCEO”) about his intention to vacate the shop in dispute. The RCEO declared aforesaid shop vacant vide order dated 14.1.2004, whereupon late Dhirendra Kumar Tyagi made an application dated 23.1.2004 seeking release of shop in dispute under Section 16(1)(b) of Act, 1972. This application was registered as Case No. 01 of 2004. 5. The respondent, Gurmeet Singh, however, filed an application seeking allotment of shop in dispute in his favour. The RCEO rejected release application filed by landlord vide order dated 9.2.2004 and thereafter vide allotment order dated 10.2.2004 allotted the shop in dispute in favour of respondent-Gurmeet Singh. 6. The outgoing tenant, Kishan Lal directly handed over possession of disputed shop to respondent-allottee i.e. Sri Gurmeet Singh on 11.2.2004 itself. 7. Sri Dhirendra Kumar Tyagi (landlord) assailed orders dated 9.2.2004 and 10.2.2004 in Rent Control Revisions No. 01 of 2004 and 04 of 2004. The two revisions were decided by Additional District Judge, Court No. 14, Moradabad by a common judgment and order dated 7.4.2004 and thereby the release application was allowed and allotment made in favour of respondent was revoked, by setting aside RCEO’s orders dated 9.2.2004 and 10.2.2004. The Revisional Court also directed the respondent-allottee to pay rent/damages at the rate of Rs. The Revisional Court also directed the respondent-allottee to pay rent/damages at the rate of Rs. 2000/- per month to landlord for the period, the shop in dispute, remain in his possession. 8. The respondent assailed revisional order dated 7.4.2004 before this Court in Writ Petition No. 15368 of 2004. The writ petition was allowed on a short point that on 7.4.2004, revisions were not fixed for hearing but for disposal of Amin’s report and, therefore, Revisional Court must decide revisions afresh after giving opportunity to all concerned parties and accordingly this Court set aside judgment and order dated 7.4.2004, and remanded the matter to Revisional Court to decide afresh. The operative part of judgment dated 15.4.2004 of this Court, reads as under: “Accordingly the writ petition is allowed. Impugned order and judgments dated 7.4.2004 are set aside. Revisional Court namely Additional District Judge, Court No. 14, Moradabad is directed to hear both the revisions on merit on 29.4.2004 on which date both the parties are directed to appear before the revisional Court. Absolutely no unnecessary adjournment in any form shall be granted by the revisional Court. The Revisional Court must dictate the judgment either on 29.4.2004 itself or deliver the same within a period of 10 days thereafter. Petitioner shall not dispossessed until 15.5.2004. It is clarified that revisional Court shall not grant any further stay order. It is also directed that on or before the next date i.e. 29.4.2004 the petitioner shall pay rent to landlord respondent No. 1 at the rate of Rs. 1,750/- per month due till 30.4.2004.” 9. The matter was heard by Revisional Court and vide judgment dated 15.5.2004 it allowed both the revisions and orders of RCEO were quashed. The shop in dispute was released in favour of landlord for the period he enjoyed possession thereof at the rate of Rs. 1750/- per month. Again respondent assailed judgment dated 15.5.2004 in Writ Petition No. 21071 of 2004 which was dismissed by this Court vide judgment dated 5.7.2004 but granting a month’s time to respondent to vacate the premises in dispute. 1750/- per month. Again respondent assailed judgment dated 15.5.2004 in Writ Petition No. 21071 of 2004 which was dismissed by this Court vide judgment dated 5.7.2004 but granting a month’s time to respondent to vacate the premises in dispute. The only ground urged and negatived by this Court was, whether a prospective allottee is entitled to contest landlord’s release application filed under Section 16(1)(b) of Act, 1972 and relying on Full Bench decision of this Court in Talib Hasan v. Additional District Judge, 1986(1) ARC 1 and Apex Court’s decision in R.N. Sharma v. S. Gaur, AIR 2002 SC 2204 , this Court held that prospective allottee has no such right at all. 10. The respondent took up the matter to Apex Court in Special Leave to Appeal (Civil) No. 13820 of 2004, which was dismissed on 28.7.2004 with the following order: “Heard learned senior counsel for the petitioner. We do not find any ground, whatsoever, to interfere with the impugned order. Accordingly, the special leave petition is dismissed. The petitioner is granted time till 31st March, 2005 to vacate the suit premises upon filing usual undertaking within four weeks from today.” 11. The Apex Court while dismissing appeal, however, granted time to respondent to vacate the shop in dispute by 31.3.2005, upon filing undertaking before Court within four weeks. It is said that respondent submitted such undertaking on 23.8.2004 before RCEO. 12. The respondent then again approached Revisional Court submitting applications on 3.3.2005 with request that judgments and orders dated 15.5.2004 in Revisions No. 01 of 2004 and 04 of 2004 should be recalled and also sought stay of his dispossession from shop in dispute in the meanwhile. The said applications were registered by Revisional Court as Misc. Case No. 02 of 2005 and 03 of 2005. Strangely, the Revisional Court issued notices vide order dated 7.3.2005 on the applications dated 3.3.2005 but declined to grant any interim order with regard to dispossession from shop in dispute vide order dated 7.3.2005. The respondent then again approached this Court in Writ Petition No. 23319 of 2005 with following reliefs: “A: a Writ of Mandamus commanding the Additional District Judge, Court No. 14, Moradabad to decide Misc. Case No. 2 of 2005 (Gurmeet Singh v. Dhirendra Kumar) and Misc. Case No. 3 of 2005 (Gurmmet Singh v. Dhirendra Kumar) on next date fixed and to grant 6C filed by the petitioner. Case No. 2 of 2005 (Gurmeet Singh v. Dhirendra Kumar) and Misc. Case No. 3 of 2005 (Gurmmet Singh v. Dhirendra Kumar) on next date fixed and to grant 6C filed by the petitioner. B: A Writ of Mandamus commanding the respondents not to dispossess the petitioner from the shop in dispute during pendency of Misc. Case No. 2 of 2005 and Misc. Case No. 3 of 2005 pending before the Additional District Judge, Court No. 14, Moradabad. C: Any other suitable writ, direction or order as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case be issued in favour of the petitioner. D: Costs of the writ petition be awarded to the petitioner.” 13. This Court, however, initially declined to grant any interim order though issued notice to other side and passed following order dated 20.4.2005: “Heard learned counsel for the petitioner. Issue notice to the respondents returnable within six weeks. For a period of three months from today, the petitioner shall not be evicted from the accommodation in question.” 14. The respondent then preferred Special Leave Petition No. 6831 of 2005 on 29.3.2005. The Apex Court took a stern view when appeal came up before it on 11.4.2005, looking to respondent’s attitude of defying undertaking to vacate premises till 31.3.2005, and issued notice to him (he was petitioner in aforesaid appeal), as to why he should not be punished for defying aforesaid undertaking. The order dated 11.4.2005 of Apex Court reads as under: “Issue notice to the petitioner to show-cause as to why he be not punished for violating the undertaking given before this Court.” 15. It appears that respondent did not bring this fact that he has also approached Apex Court in Special Leave Petition No. 6831 of 2005, before this Court in Writ Petition No. 23319 of 2005 which came up before Court (Hon. A. Kumar, J.) on 20.4.2005 and a stay order was granted restraining his dispossession. 16. It is in these circumstances, the landlord, Dhirendra Kumar Tyagi, initiated contempt proceedings by filing Contempt Petition No. 116 of 2005 in Special Leave Petition (Civil) No. 13820 of 2004 before Apex Court on 27.4.2005. It came up before Apex Court on 11.7.2005. Taking the matter seriously, the Court passed following order: “Heard learned counsel appearing for the petitioner. 16. It is in these circumstances, the landlord, Dhirendra Kumar Tyagi, initiated contempt proceedings by filing Contempt Petition No. 116 of 2005 in Special Leave Petition (Civil) No. 13820 of 2004 before Apex Court on 27.4.2005. It came up before Apex Court on 11.7.2005. Taking the matter seriously, the Court passed following order: “Heard learned counsel appearing for the petitioner. This petition has been filed for initiated contempt proceedings against the sole respondent Gurmeet Singh for not vacating the premises in question by 31st March, 2005 inspite of undertaking given by him on 23.8.2004. Prima facie, we are of the view that a case for contempt is made out as the respondent wants to remain in possession of the premises in question by hook or by crook. Issue notice returnable on 25.7.2005. The respondent shall remain present in person in Court on that date. The petition for extension of time is dismissed as not pressed. Issue notice to the respondent to show-cause as to why direction be not given to the executing Court to deliver vacant possession of the premises in question to the landlord even by deputation of armed force.” 17. The above order shows that Apex Court rejected respondent’s application seeking extension of time as not pressed and then issued notice directing him to present himself in the Court and also to show-cause as to why executing Court be not directed to deliver vacant possession in question to landlord even if by deputation of armed force. The respondent still defied Apex Court’s order, hence on 18.7.2005 non-bailable warrants were issued by Apex Court, passing following order : “Learned counsel appearing on behalf of the petitioner states that he has no instructions in relation to the notice issued on 11th April, 2005. It appears that the petitioner is avoiding to appear before this Court inspite of notice. Issue non-bailable warrants of arrest against the petition. The concerned Superintendent of Police shall see that the warrant of arrest is executed within a period of four weeks from 18th July, 2005 and compliance report is sent to this Court.” 18. Sri Dhirendra Kumar Tyagi unfortunately died on 8.7.2005 in the Chamber of his counsel and thereafter has been substituted by petitioners vide order dated 7.10.2005, passed by Apex Court in Special Leave Petition No. 6831 of 2005. Sri Dhirendra Kumar Tyagi unfortunately died on 8.7.2005 in the Chamber of his counsel and thereafter has been substituted by petitioners vide order dated 7.10.2005, passed by Apex Court in Special Leave Petition No. 6831 of 2005. The Contempt Petition No. 116 of 2005 came up before Apex Court on 25.7.2005 and here also non-bailable warrants were issued with following order: “Though on 11.7.2005 while issuing notice on the contempt petition this Court directed the contemnor-Gurmeet Singh to remain present in Court in person today. But inspite of such direction, he has not bothered to appear before this Court. Issue non-bailable warrant of arrest against the contemnor-Gurmeet Singh.” 19. Finding no other alternative, the respondent got his Writ Petition No. 23319 of 2005 dismissed as not pressed on 26.5.2005 and this Court’s (Hon. A. Kumar, J.), order reads as under: “Sri Shamim Ahmad, holding brief of Sri M.A. Qadeer, states that this petition may be dismissed as not pressed. It is accordingly dismissed as not pressed. Interim order, if any, stands vacated.” 20. In the reply filed before Apex Court in Contempt Petition No. 116 of 2005, copy whereof has been placed on record as Annexure-15 to the writ petition, the respondent explained his conduct of not vacating the shop in dispute for the reason of interim order dated 20.4.2005 passed in Writ Petition No. 23319 of 2005 and as per the advise rendered by his counsel thereupon. The Apex Court took a very serious view in the matter and the manner, the things have taken place, and also, the factum of interim order granted by this Court in above writ petition, and, passed a detailed order on 29.8.2005, taking up Special Leave Petition No. 6831 of 2005 as also the Contempt Petition No. 116 of 2005 together. The order reads as under: “On 28th July, 2004, while dismissing the special leave petition against the order passed by the Allahabad High Court, we granted time till 31st March, 2005, to the petitioner to vacate the premises in question. The order reads as under: “On 28th July, 2004, while dismissing the special leave petition against the order passed by the Allahabad High Court, we granted time till 31st March, 2005, to the petitioner to vacate the premises in question. Thereafter it appears under certain circumstances the High Court of Allahabad was moved by filing a C.M. Writ Petition No. 23319 of 2005, wherein while issuing notice on 20th April, 2005, Anjani Kumar, J. of the Allahabad High Court passed an order that for a period of three months the tenant shall not be evicted from the accommodation in question inspite of the fact that it was clearly stated in the writ petition that this Court had granted time till 31st March, 2005. We really fail to understand how the High Court, has passed interim order, which is in teeth of this Court’s order. For the time being, we are not passing any other order excepting calling for a report from the High Court as to under what circumstances such an order was passed. The report must be received within a period of four weeks from today. List these matters on 3rd October, 2005. By order dated 18th July, 2005, we directed for issuance of non-bailable warrant of arrest against the petitioner and directed the Superintendent of Police, Moradabad (Uttar Pradesh) to see that warrant of arrest is executed within a period of four weeks and send compliance report of this Court. Petitioner, however, has filed an affidavit before this Court that he has already surrendered in Court on 28th August, 2005, without specifying therein before which Court he has surrendered. It has also not been stated in the affidavit whether he has been remanded to custody or not. Call for a report from the Superintendent of Police, Moradabad as to whether the non-bailable warrant of arrest issued against the petitioner has been executed or not. If so, on which date executed and whether the petitioner has been remanded to custody or not. He should also report why compliance report has not been sent to this Court as yet. In case the petitioner has been remanded to custody, a certified copy of remand order of Court be also sent. If so, on which date executed and whether the petitioner has been remanded to custody or not. He should also report why compliance report has not been sent to this Court as yet. In case the petitioner has been remanded to custody, a certified copy of remand order of Court be also sent. Let this order be communicated to the Superintendent of Police by fax as well as asking him to send the required report by fax as well as so as to reach here by 7th September, 2005. Let the report be placed for consideration on 9th September, 2005.” 21. It is in these circumstances and facing a vulnerable situation, respondent finding probably no other alternative, handed over possession of shop in dispute to petitioner on 4.9.2005. 22. Noticing aforesaid fact that respondent has handed over possession to landlord, the Apex Court passed following order on 7.10.2005 in Contempt Petition No. 116 of 2005, and Special Leave Petitions No. 13820 of 2004 and 6831 of 2005: “The interlocutory application for substitution to bring on record legal representatives of deceased sole petitioner is allowed. Perused the report received from the High Court. In view of the fact stated therein, we are of the view that the matter should not be further proceeded. It has been stated on behalf of the landlord that he has got vacant possession of the premises in question. In view of this, we discharge the rule of contempt. The contempt petition is, accordingly, disposed of. The contemnor is discharged from the liability of bail bonds. In view of this order, other interlocutory applications are disposed of.” 23. The respondent thereafter continuing his attempt to keep the shop in dispute with him, preferred Misc. Application No. 06 of 2005 in Case No. 02 of 2005 in Rent Control Revision No. 01 of 2004, dated 31.10.2005 under Sections 19 and 31 of Act, 1972, read with Section 151 CPC and Rule 24(1) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1971 (hereinafter referred to as the “Rules, 1972”). It is alleged that the landlord has not commenced business in the shop in dispute within a month from the date of getting possession thereof and shop is still lying closed, therefore, it is evident that release order has been disobeyed, the same should be recalled and the shop in dispute be allotted to him (respondent-Gurmeet Singh). It is alleged that the landlord has not commenced business in the shop in dispute within a month from the date of getting possession thereof and shop is still lying closed, therefore, it is evident that release order has been disobeyed, the same should be recalled and the shop in dispute be allotted to him (respondent-Gurmeet Singh). 24. The Revisional Court, namely, Additional District Judge, Court No. 14, Moradabad taking cognisance of the aforesaid application, appointed a Commission, pursuant whereto the Court Amin submitted report on 22.11.2005. 25. The petitioners seriously contested this application, filing their objections (Annexure-20 to the writ petition). 26. Another but similar application was filed by respondent, registered as Misc. Application No. 07 of 2005 in Case No. 03 of 2005, in Rent Control Revision No. 04 of 2004. 27. Both these applications have been allowed by Revisional Court, i.e., Sri Bhupendra Sahai, Additional District Judge, Court No. 14, Moradabad in purported exercise of power under Section 19 of Act, 1972, read with Rule 24(1) of Rules 1972 and Section 151 CPC, vide impugned order dated 28.4.2006 and release order dated 15.5.2004 has been revoked. It has further directed RCEO to take steps for allotment of shop in dispute in favour of respondent, Gurmeet Singh, treating the shop vacant. It is this order dated 28.4.2006 which has been assailed in this petition. 28. The respondent has filed a counter-affidavit and put in appearance through his counsel, Sri Manoj Kumar. The basic facts are not disputed but he has supported the impugned order passed under Section 19 of Act, 1972 and has contested the grounds taken in writ petition, stating since petitioners have not commenced their business after obtaining possession thereof within one month, the release order has rightly been revoked by Revisional Court. 29. Before commenting on other aspects of the matter I would find it prudent to first find out, whether Section 19 of Act, 1972, at all, is attracted in the present case justifying impugned order passed by Revisional Court. It reads as under: “19. 29. Before commenting on other aspects of the matter I would find it prudent to first find out, whether Section 19 of Act, 1972, at all, is attracted in the present case justifying impugned order passed by Revisional Court. It reads as under: “19. Re-allotment in the event of landlord abusing the release order.—Where a building or part thereof is released in favour of the landlord under Section 16, or on revision under Section 18, on the ground that it was required by the landlord for occupation by himself or any member of his family or any person for whose benefit it was held by him, or for the objects of the trust of which he was trustee, or on the ground that it was required for purposes of demolition and new construction, and the landlord either puts or causes to be put into occupation any person different from the person for whose occupation, according to the landlord’s representation, it was required, or permits any such person to occupy it, or otherwise puts it to any use other than the one for which it was released or, as the case may be, omits to occupy it within one month or such extended period as the District Magistrate may for sufficient cause allow from the date of his obtaining possession or in the case of a building which was proposed to be occupied after some construction or reconstruction, from the date of completion thereof, the District Magistrate or, as the case may be, the District Judge, on an application being made in that behalf within three months from the date of such act or omission, may after giving to the landlord an opportunity of being heard, revoke the order of release in whole or in part, and on such order being made, the District Magistrate may treat the building or part as vacant and allot it as such.” 30. A perusal of above makes it very clear that it applies to a building or part thereof which is released in favour of landlord under Section 16. It includes the ultimate release of building not only vide order of RCEO under Section 16 but also by revisional order passed under Section 18. A perusal of above makes it very clear that it applies to a building or part thereof which is released in favour of landlord under Section 16. It includes the ultimate release of building not only vide order of RCEO under Section 16 but also by revisional order passed under Section 18. It covers such orders of release which have been passed accepting the ground for release, set up by landlord, that the building or part thereof is required by landlord himself or any member of his family or any person for whose benefit it was held by him for occupation or for the objects of trust for which he was trustee. It also applies to such release orders which have been passed under Section 16 read with Section 18 accepting the ground set up by landlord that he required it for the purpose of demolition and new construction. This is about the buildings or part thereof to which Section 19 would apply. 31. Now the incident for attracting Section 19 would be, if the landlord does or omit to do, certain acts, as under: (a) If the landlord either puts or causes to be put into occupation any person different from the person for whose occupation the building or part thereof was required, as per landlord’s representation, accepted by competent authority, under Section 16 read with Section 18 of Act, 1972. (b) If the landlord permits any different person to occupy such building or part thereof other than the one for whose benefits etc. he got it released. (c) The landlord puts the building or part thereof in use, other than the one for which it was released. (d) If the landlord omits to occupy it within one month or such extended period as the District Magistrate may for sufficient cause allow from the date of his obtaining possession. (e) In the case of a building which was proposed to be occupied after some construction or re-construction, from the completion thereof, if landlord fails to occupy it within one month or such extended period as the District Magistrate may allow for sufficient cause. 32. (e) In the case of a building which was proposed to be occupied after some construction or re-construction, from the completion thereof, if landlord fails to occupy it within one month or such extended period as the District Magistrate may allow for sufficient cause. 32. If any of these contingencies/incident occur, it would give a cause of action to any person interested in allotment of accommodation, to move an application before District Magistrate, but such an application must have been made within three months from the date of such act or omission. 33. If any such application is received by District Magistrate within the time, as prescribed above, he shall give an opportunity to landlord and thereafter may revoke the order of release in whole or in part, as he finds just and proper, in the facts and circumstances of the case. When such an order is passed, the building or part thereof may be treated as vacant and the District Magistrate may allot the same in accordance with law. 34. Section 19, in effect, is a preventive provision and to ensure that a landlord may not get a building or part thereof released under Section 16 read with Section 18 of Act, 1972 by taking a fictitious stand. Though he has a different intention but by making mis-representation, if he gets the building released and thereafter use or allowed it to be used in a different manner and/or by different person(s), he is liable to forfeit such release. It is to ensure that landlord should observe and follow the purpose and objective which he has disclosed to the competent authority to get the building released. It also gives an opportunity to a person interested in allotment of a building or part thereof to reinduct a building already released under Section 16/18 of Act, 1972 by making it available for allotment, in case the landlord defy and disregard, by acting contrary to his representation, founded whereon, the building or part thereof was released, by competent authority. 35. 35. In the present case, learned counsel for the petitioners candidly took a stand that condition which says, if landlord omits to occupy the building or part thereof within one month or such extended period as allowed by District Magistrate apply inasmuch as according to him the landlord sought release of shop in question on the ground that he intends to start his own business therein, i.e., his son Yogendra Singh shall commence his business. This is evident from order dated 15.5.2004 passed by Revisional Court while allowing landlords’ revision, as is evident from following: ^^vr% Hkou Lokeh rFkk mlds iq= ;ksxsUnz flag ds 'kiFk i=ksa ls ;g Hkyh&Hkkafr lkfcr gS fd Hkou Lokeh dks vius iq= dks dkjksckj djkus ds fy, fookfnr nqdku dh vko’;drk gS] tks ln~HkkoukiwoZd gSA** “Hence, from the affidavits of the landlord and his son Yogendra Singh it is well established that the landlord is in need of the shop in dispute so as to enable his son to do business; the said need is bona fide.” (English translation by the Court) 36. Sri Manoj Kumar, learned counsel for respondent, submitted that the word “occupy” means “starting of business” for which the shop in question was sought to be released. Since no business had been started by landlords’ son within one month, therefore, it provided a cause of action to tenant to move application under Section 19 and the same has rightly been allowed by Revisional Court. 37. It has been admitted between the parties that possession of shop in dispute came in the hands of landlord on 4.9.2005. Further that the Revisional Court has taken the view, if no business commenced by 4.10.2005, it would attract Section 19 of Act, 1972. 38. Here the question would arise about the meaning of words “occupy” and “possession” used in this respect in Section 19 of Act, 1972. The intention of legislature in coining these two words in Section 19 is the key of the entire dispute. 39. The word “occupy” has been defined in “Oxford Advanced Learner’s Dictionary of Current English” published by Oxford University Press, Seventh Edition, at page 1049: “Occupy : 1. to fill or use a space, an area or an amount of time. . . . 2. to live or work in a room, house or building. . . . .3. 39. The word “occupy” has been defined in “Oxford Advanced Learner’s Dictionary of Current English” published by Oxford University Press, Seventh Edition, at page 1049: “Occupy : 1. to fill or use a space, an area or an amount of time. . . . 2. to live or work in a room, house or building. . . . .3. to enter a place in a large group and take control of it, especially by military force. . . . .4. to fill your time or keep you busy doing. . . . 5. to have an official job or position.” 40. In P Ramanatha Aiyar’s “The Law Lexicon” with Legal Maxims, Latin Terms and Words & Phrases, Second Edition 1997), published by Wadhwa and Company Law Publishers, at pages 1344: “Occupy. To take possession of, seize, employ, to take possession of and retain or keep. “To occupy” property denotes a physical possession; but “occupy’ is a word which in one form and another is not infrequently used of an incorporeal hereditament.” 41. In “Chambers Dictionary” (Deluxe Edition), 1995 at page: 993: “Occupy: to take possession of: to capture: to hold: to keep possession of by being present in: to fill (a post, office): take up, as a space, time etc.: to tenant: to busy: to lay out in trade: to cohabit with: to hold possession: to trade: to cohabit:” 42. In “The New Lexicon Webster’s Dictionary of the English Language” (1987), published by Lexicon Publications, Inc. at page 694: “Occupy: to take, or have, possession of by settling in or on, as resident or tenant // to reside in // to take or retain possession of by military force // to fill (a space or period of time) // (of someone) to fill (a position) // to keep (one’s mind) busy // to keep employed.” 43. In “Black’s Law Dictionary” Fifth Edition, published by West Publishing Co. 1979, at page 974: “Occupy. To take or enter upon possession of; to hold possession of; to hold or keep for use; to possess; to tenant; to do business in; to take or hold possession. Actual use, possession, and cultivation.” 44. The definition of term “occupy”, as noticed above, in general, depicts not only a mere possession i.e. a technical, symbolic kind of possession but it also contemplates intention of person having possession to keep and retain property in possession. Actual use, possession, and cultivation.” 44. The definition of term “occupy”, as noticed above, in general, depicts not only a mere possession i.e. a technical, symbolic kind of possession but it also contemplates intention of person having possession to keep and retain property in possession. In other words, a paper possession or a symbolic one is not sufficient to attract the term “occupy” but it is something more than that. The mere technical or symbolic possession by itself may not be equated to satisfy requirement of the term “occupy”. If there is something more than that to the intention of retention, it would be difficult to say that incumbent is not occupying a premises. In the context of immoveable property these observation aptly apply. 45. The word “possession” has been defined in “Oxford English-English-Hindi Dictionary” published by Oxford University Press, first published in 2008, 11th Impression January 2010, at page 920: “possession-1. the state of having or owning something. 2. Something that you have or own” 46. In “The New Lexicon Webster’s Dictionary of the English Language” (1987), published by Lexicon Publications, Inc. at page 784: “pos-ses-sion-a possessing or being possessed II that which is possessed II (pl.) property II a territory under the political and economic control of another country II (law) actual enjoyment of property not founded on any title of ownership to take possession of to begin to occupy as owner II to affect so as to dominate.” 47. In “Chambers Dictionary” (Deluxe Edition), first published in India in 1993, reprint 1996 by Allied Publishers Limited, New Delhi at page 1333 defines ‘possess’ and ‘possession’ as under : “possess poz-es’, vt to inhabit, occupy (obs.); to have or hold as owner, or as if owner; to have as a quality; to seize; to obtain; to attain (Spenser); to maintain; to control; to be master of; to occupy and dominate the mind of; to put in possession (with of, formerly with in); to inform, acquaint; to imbue; to impress with the notion of feeling; to prepossess (obs).” “possession the act, state or fact of possession or being possessed, a thing possessed; a subject foreign territory” 48. In “Corpus Juris Secundum”, A Complete Restatement of the Entire American Law as developed by All Reported Cases (1951), Vol. In “Corpus Juris Secundum”, A Complete Restatement of the Entire American Law as developed by All Reported Cases (1951), Vol. LXXII, published by Brooklyn, N.Y., The American Law Book Co., at pages 233-235: “Possession expresses the closest relation of fact which can exist between a corporeal thing and the person who possesses it, implying an actual physical contact, as by sitting or standing upon a thing; denoting custody coupled with a right or interest of proprietorship; and “possession” is inclusive of “custody.” although “custody” is not tantamount to “possession.” In its full significance, “possession” connotes domination or supremacy of authority. It implies a right and a fact; the right to enjoy annexed to the right of property, and the fact of the real detention of thing which would be in the hands of a master or of another for him. It also implies a right to deal with property at pleasure and to exclude other persons from meddling with it. Possession involves power of control and intent to control, and all the definitions contained in recognized law dictionaries indicate that the element of custody and control is involved in the term “possession.” The word “possession” is also defined as meaning the thing possessed; that which anyone occupies, owns, or controls; and in this sense, as applied to the thing possessed, the word is frequently employed in the plural, denoting property in the aggregate; wealth; and it may include real estate where such is the intention, although this is not the technical signification. It is also defined as meaning dominion; as, foreign possessions; and, while in this sense the term is not a word of art descriptive of a recognised geographical or Governmental entity, it is employed in a number of federal statues to describe the area to which various congressional statutes apply. “Possession” in the sense of ownership, and as a degree of title, and as indicating the holding or retaining of property in one’s power or control, is treated in Property.” 49. In “Black’s Law Dictionary” Seventh Edition (1999), published by West Group, St. Paul, Minn., 1999, at page 1183: “possession. 1. The fact of having or holding property in one’s power; the exercise of dominion over property. 2. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object. Paul, Minn., 1999, at page 1183: “possession. 1. The fact of having or holding property in one’s power; the exercise of dominion over property. 2. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object. 3. (usu. pl.) Something that a person owns or controls; PROPERTY (2). 4. A territorial dominion of a state or nation.” 50. In P. Ramanatha Aiyar’s “The Law Lexicon” with Legal Maxims, Latin Terms and Words and Phrases, Second Edition 1997), published by Wadhwa and Company Law Publishers, at pages 1481-1483: “1. Physical control, whether actual or in the eyes of law, over property; the condition of holding at one’s disposal (Section 66, T.P. Act); 2. the area in one’s possession (Section 37, Indian Evidence Act). Possession is a detention or enjoyment of a thing which a man holds or exercise by himself or by another, who keeps or exercise it in his name. “Possession is said to be in two ways-either actual possession or possession in law. “Actual Possession,” is, when a man entreth into lands or tenements to him descended, or otherwise. Possession is a detention or enjoyment of a thing which a man holds or exercise by himself or by another, who keeps or exercise it in his name. “Possession is said to be in two ways-either actual possession or possession in law. “Actual Possession,” is, when a man entreth into lands or tenements to him descended, or otherwise. “Possession in Law, is when lands of tenements are descended to a man, and he hath not as yet really, actually, and in deed entered into them: And it is called possession in law because that in the eye and consideration of the law, he is deemed to be in possession, inasmuch as he is liable to every mans action that will sue concerning the same lands or tenements.” The term has been defined as follows: Simply the owning or having a thing in one’s power; the present right and power to control a thing; the detention and control of the manual or ideal custody of anything which may be the subject of property, for one’s use of enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one’s place and name; the detention or enjoyment of a thing which a man holds or exercise by himself or by another who keeps or exercises it in his name; the act of possession a having and holding or retaining of property in one’s power or control; the sole control of the property or of some physical attachment to it; that condition of fact under which one can exercise his power over a corporeal thing at his pleasure, to the exclusion of all other persons. 51. Looking to the meaning and the context and colour in which word “occupy” has been used, Section 19 refers to its contextual reference with property and not individual. The phrase is “omits to occupy it”. Here the word “omits” reflects an action or inaction on the part of individual but the word “occupy” refers to property/accommodation/building in question. The word “possession” is also in reference to same context and not otherwise. When the word “occupy” is used in the context of an immoveable property, it means to take possession or retain possession or keep possession which is slightly stronger than the mere possession like that of symbolic possession. The word “possession” is also in reference to same context and not otherwise. When the word “occupy” is used in the context of an immoveable property, it means to take possession or retain possession or keep possession which is slightly stronger than the mere possession like that of symbolic possession. When words “date of obtaining possession” are used, it is the initial incidence on which the incumbent gets possession of the property/accommodation/building in question. At that stage, anything overt to show retention or keeping on possession would not arise. In order to make the things more clear and explicit so as may not create any ambiguity, the two words, in the context of immoveable property have been used but the substance is same except that ‘occupy’ involves an intention to stay for living, retention, business etc. It is in this context though jurisdictionally the word “possession” also connotes same meaning with reference to immoveable property but the legislature has found the term ‘occupy’ apt to express its intent. However, to extend its meaning bereft of various other practical aspects from the point of view of its user would amount to stretching it out of context leading to absurd and unintended consequences. 52. I may test the argument of respondent’s counsel Sri Manoj Kumar from some more but different angles. 53. A landlord gets a residential accommodation vacated for his personal use, i.e., his own residence. He gets possession from the outgoing tenant/occupant on the first day of month. He employs labours etc. for some minor repair or whitewashing/painting work or some modification/beautification, which may includes interior architectural improvement. Such work may take a bit longer time than a month. The landlord thus may not be able to actually come to reside in the accommodation in question. Can it be said that after one month, Section 19 will get attracted in such case, even if the landlord is making vacant accommodation, ready for his residence, in his own way merely since he has not come to actually reside himself within one month and hence he will have to loose it. If accepted, this will make the intent of statute, redundant and a subject of mockery. If accepted, this will make the intent of statute, redundant and a subject of mockery. Possession of landlord is continuing, even if, as a matter of fact, the labours and others are working therein, may be for a few weeks or months to make the use of landlord and his family, more comfortable, soothing and enjoyable. Similar illustrations can be extended to a non-residential/commercial accommodation. 54. In other words, and in nutshell, the purpose of Section 19 is that a landlord or the owner of property in dispute may not be able to misuse the statute by getting a sitting tenant ousted and property released so as to get it out of the ambit of allotment proceedings for letting it out illegally on higher rents or otherwise to victimise tenants etc. But where a landlord is seriously and in a bona fide manner, after getting possession of property in dispute, maintaining his possession, is in the process of getting property dressed and ready for the purpose it was got released. Thus the mischief under Section 19 would not be attracted. The mere fact that within one month such purpose, as such, has not been overtly and apparently shown, despite continuous possession of landlord will not make the released building unreleased. If there is no change in user of the property etc., the property shall not come back for allotment etc. for the reason that even if the landlord finds that property needs some improvement, decoration, interior work etc., he cannot be compelled not to go ahead with such work before actual user. He cannot be forced to ignore all these aspects, if necessary, and be asked to start living or commencing his business howsoever inconvenient it would be to him to do so, in the condition in which the possession of building came to his hand on a particular date. This understanding, if accepted, would not only defeat the very purpose but would amount to misreading of Section 19. It will be wholly unjust, unfair and unreasonable which no Court of law will allow while interpreting a provision like the present one and that too bereft of the scheme of statute. 55. I may add one more thing here. In respect to non-residential accommodations, sometimes there are some statutory requirement like licence, permission, registration with taxing authority etc. which may take time. 55. I may add one more thing here. In respect to non-residential accommodations, sometimes there are some statutory requirement like licence, permission, registration with taxing authority etc. which may take time. One may not commence business unless all these statutory requirement are fulfilled. It goes without saying that one may apply at his own volition and expediency but had not control over the time within which such permission, licence, registration etc. is made/granted by concerned authority. The general experience in this regard can be taken note judicially that the public authorities proceed in their own way and take time mostly leisurely. If what is argued by Sri Manoj Kumar, learned counsel for the respondent, is accepted, even in such case, the landlord or beneficiary for whom he has got the accommodation vacated, would have to forfeit or loose the property for a reason which is wholly beyond his control and for which he cannot be and should not be made to suffer. 56. In the present case the landlord has categorically come with a stand that the shop in question was under work to make it suitable for starting his business for which it was got released by petitioner-landlord and on that aspect there is not even a whisper in the impugned judgment that the stand of landlord was incorrect or false. Here one more interesting aspect is that the landlord though succeeded in getting accommodation released when Revisional Court passed order and judgment dated 15.5.2004 and the said order also attained finality after dismissal of appeal by Apex Court on 28.7.2004, yet the outgoing tenant i.e. respondent did not vacate accommodation when Apex Court went to the extent of issuing contempt notice to respondent-tenant, the possession was given to petitioner-landlord only on 4.9.2005. Therefore, the outgoing tenant took more than a year in handing over possession of the disputed premises to petitioner-landlord, but when it comes the turn of landlord, it is interesting that Revisional Court passed impugned order by simply observing that within 30 days of handing over of possession, the landlord has not commenced business though admittedly possession of shop in question is with landlord and it is also on record that necessary electric fitting work etc. was going on the shop in question. was going on the shop in question. In Amin Commission’s report, it was clear that at the time of his visit, electrical fitting work was going on in the shop in dispute. This is evident from following observations made by Revisional Court in its order dated 28.4.2006: “dfe’uj egksn; us viuh fjiksVZ esa vafdr fd;k gS fd fookfnr nqdku ij 'kqDyk th fctyh dh fQfVax dk dk;Z djk jgs FksA” “Commissioner has mentioned in his report that Shukla Ji was getting work of electrical fittings done at the disputed shop.” (English Translation by the Court) 57. The landlords also have shown that they have already got registration with U.P. Trade Tax Department and photocopy of registration document in Form 15 was placed before Revisional Court wherein the date of commencement of business was shown as 24.12.2005. This document also shows that the Dealers Provincial Registration was issued w.e.f. 4.10.2005. The Revisional Court has ignored all these documents simply on the ground that since business had to commence by 4.10.2005, therefore, all these documents are of no consequence. This assumption on the part of Revisional Court and literal interpretation that business must have commenced within 30 days is nothing but a clear misreading and totally faulty understanding and appreciation of Section 19 of Act, 1972 and, therefore, unsustainable. The Revisional Court in fact has tried to read something which is not there. Section 19 nowhere talks of commencement of business or actual residence, as the case may be, within one month. This is an innovation by Revisional Court in passing the impugned order and that too to the exclusion of entire scheme, intention, purpose, objection and context of statute. 58. A litigious outgoing tenant has shown his audacity and conduct of violating undertaking given, even up to the level of Apex Court, and defying Apex Court’s order, for months together, further succeeded in harassing his landlord by filing a thoroughly mischievous application before Revisional Court. Unfortunately, in passing the impugned judgment, the Court below has also fell in mischievous trap of respondent and that is how the plight of harassed petitioner-landlord has been aggravated and enlarged. This is wholly unreasonable, illegal and in most unjust. The writ petition in the circumstances, deserved to be allowed. 59. In the result, the writ petition is allowed. The impugned order dated 28.4.2006 is hereby quashed. This is wholly unreasonable, illegal and in most unjust. The writ petition in the circumstances, deserved to be allowed. 59. In the result, the writ petition is allowed. The impugned order dated 28.4.2006 is hereby quashed. The petitioners shall be entitled to costs, which I quantify to Rs. 50,000/-, which shall be paid to him by respondent within one month from today, failing which on an application made by petitioners before the Revisional Court concerned, and a certificate being issued by it, the cost shall be recovered as arrears of land revenue from respondent and then paid to the petitioner. ——————