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2013 DIGILAW 886 (ALL)

AZAM KHAN v. MOHD. KHALID

2013-03-19

SUDHIR AGARWAL

body2013
JUDGMENT Hon’ble Sudhir Agarwal, J.—The substantial questions of law, up for consideration in this matter are: (1) Whether the status of tenant can determine applicability of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as “Act, 1972”) in respect to a building? (2) Whether Courts below were justified by not entering into the question, whether Act, 1972 was applicable in the case in hand or not, only on the ground that tenant having admitted himself to be an unauthorised occupant/trespasser in the building in dispute, therefore, for his ejectment civil suit was maintainable, and, Civil Court has jurisdiction to try the suit in question? 2. Learned counsel for parties requested and agreed to argue the case finally at this stage and, hence, I proceed to decide the questions. 3. Heard Sri A.A. Khan, Advocate for appellants; and, Sri Vinod Sinha Advocate, and Sri Mahesh Sharma, Advocate, for respondents. 4. The facts giving rise to the present dispute, in brief, are as under. 5. The dispute relates to a house situated in Mohalla Kaziwada, Tehsil Khurja, District Bulandshahar. It included the residential as well as non residential buildings. Treating the building to be within the ambit of Act, 1972, plaintiff-respondent Mohd. Khalid filed an application under Section 21 (1) (a) of Act, 1972 seeking release of building in dispute, on the ground of personal need. 6. The application was rejected by Prescribed Authority vide order dated 3.5.1991, whereagainst Rent Control Appeal No. 16 of 1991 was filed wherein the appellant-defendant stated and took a defence that he is an unauthorized occupant and, therefore, Act, 1972 is inapplicable. This statement of defendant was accepted by the Appellate Court and holding Act, 1972 inapplicable, it dismissed the appeal on 23.2.1994. 7. Since the defendant-appellant himself admitted to be a trespasser, plaintiff-landlord instituted Original Suit No. 148 of 1997, for his ejectment from the building in dispute, vide plaint dated 20.2.1997. 8. The defendant-appellant contested the suit and in his written statement, making a somersault to his earlier stand, pleaded that he is actual and valid tenant in the building in dispute. He pleaded that at the time when building in dispute was let out to him, ten years had not completed from the date of its construction and, therefore, Act, 1972, at that time, was not applicable, hence the occupation of appellant-tenant is not illegal. 9. He pleaded that at the time when building in dispute was let out to him, ten years had not completed from the date of its construction and, therefore, Act, 1972, at that time, was not applicable, hence the occupation of appellant-tenant is not illegal. 9. While the suit was pending, landlord initiated proceedings under Section 12 of Act, 1972 before Rent Control and Eviction Officer (hereinafter referred to as “RCEO”) seeking declaration of vacancy whereupon RCEO passed order on 25.11.1999 declaring vacancy. In the aforesaid matter also the defendant-appellant raised a dispute about applicability of Act, 1972 and raised a plea that when he was let out building, Act, 1972 at that time was not applicable, hence it cannot be said that his tenancy was illegal or unauthorised. RCEO, however, passed order declaring the vacancy. This order of RCEO dated 25.11.1999 came to be assailed in Writ-A No. 52963 of 1999 which has been allowed by this Court vide judgment dated 23.11.2012 observing that RCEO, without considering the question whether Act, 1972 was applicable upon the tenant at the time when he was let out building or not, cannot proceed to declare vacancy, and hence, setting aside RCEO’s order dated 23.11.1999, matter has been remanded to RCEO. 10. The present suit, in the meantime, was decided by Additional Civil Judge (Senior Division)/ First Additional Chief Judicial Magistrate, Gautam Buddha Nagar, vide decree and judgment dated 18.5.2012, decreeing the suit holding that since defendant-tenant himself has admitted that he is an unauthorised and illegal occupant, Act, 1972 is not applicable, and, civil suit for ejectment of such a person, who is mere trespasser, is maintainable. 11. In taking the above view, Trial Court followed earlier judgment dated 23.2.1994 passed in Rent Control Appeal No. 16 of 1999 and stand taken by the defendant therein. The aforesaid judgment of Trial Court has been confirmed by lower Appellate Court by dismissing Civil Appeal No. 15 of 2012 of defendant-appellant. 12. Sri A.A. Khan, learned counsel for appellant contended that applicability of Act, 1972 does not depend upon the question whether tenant is validly occupying the rented building or he is an unauthorised occupant. The Act, 1972 is applicable upon a building and does not depend on the status of the landlord or the tenant. 12. Sri A.A. Khan, learned counsel for appellant contended that applicability of Act, 1972 does not depend upon the question whether tenant is validly occupying the rented building or he is an unauthorised occupant. The Act, 1972 is applicable upon a building and does not depend on the status of the landlord or the tenant. In respect to certain buildings, whose landlords are of the category mentioned in Section 2, such buildings are exempted from application of Act, 1972, but otherwise for application of Act, 1972, it is the building which has to be seen and not the status and position of tenant. 13. Sri Mahesh Sharma, learned counsel appearing for landlord-plaintiff, as a matter of proposition of law, could not dispute the above legal submission. 14. A bare perusal of Act, 1972 clearly shows that it contains provisions of regulating letting, rent and eviction, from certain classes of buildings situated in the urban areas and for matters connected therewith. Except to the extent, application of Act, 1972 is excluded or exempted under Section 2 thereof, Act, 1972, it is applicable to all the buildings, situate in urban areas of local bodies as contemplated in sub-sections (2) and (3) of Section 1 thereof. 15. The mere fact that a person is occupying a building unauthorisedly, which is otherwise within the ambit of Act, 1972, will not exempt the application of Act, 1972 itself, but the mode and manner and the proceedings regarding ejectment of such person, may be governed by different provisions of Act, 1972. Admission of defendant-appellant that he was unauthorised occupant, which issue has been decided by the Appellate Court vide judgment dated 23.2.1994, may be relevant and admissible evidence, being admission on his part, about his own status, but regarding applicability of Act, 1972, such admission will make no difference and it is wholly irrelevant. 16. Admission of defendant-appellant that he was unauthorised occupant, which issue has been decided by the Appellate Court vide judgment dated 23.2.1994, may be relevant and admissible evidence, being admission on his part, about his own status, but regarding applicability of Act, 1972, such admission will make no difference and it is wholly irrelevant. 16. In Dinesh Chandra Paliwal v. Additional District Judge, Nainital, 1983 (2) RCJ 599, it was held that legislature has the competence to make law in regard to the regulation of letting, rent and eviction in respect to all the buildings situate in the State, whether in the urban areas or in rural, and if the State Government found that there is a crisis of accommodation in and around Nagar Mahapalikas, Nagar Palikas or Notified Areas, it was free to apply the Act to those areas and Act, 1972 has been enacted with such an object. Certain kind of exemptions to buildings of particular description has been provided by Section 2 of the aforesaid Act. If a building is otherwise within the ambit of Act, 1972, the mere fact that a person has occupied it unauthorizedly or illegally, will not take away such building from ambit of Act, 1972. In fact, there is prohibition under Section 11 of Act, 1972 for letting any building governed by Act, 1972 to any person unless an allotment order under Section 16 has been issued in his favour. If a person has occupied a building unauthorisedly, i.e., without any letter of allotment, Section 13 declares occupation of building by such person, unauthorized, and, such building, would be deemed to be vacant, and, can be allotted by the competent authority, by issuing a letter of allotment, under Section 16 of Act, 1972. If the landlord seeks release of such building, such unauthorised occupant would have no right to contest the application of landlord for release of the building in question. 17. A Division Bench of this Court, presided by Hon’ble Dr. B.S. Chauhan, J. (as His Lordship then was), while answering the reference made by Hon’ble Single Judge in Writ Petition No. 37767 of 2003 (Ajay Pal Singh v. District Judge, Meerut and others), held that an unauthorised occupant has no right to challenge release of accommodation in question in favour of landlord. 18. B.S. Chauhan, J. (as His Lordship then was), while answering the reference made by Hon’ble Single Judge in Writ Petition No. 37767 of 2003 (Ajay Pal Singh v. District Judge, Meerut and others), held that an unauthorised occupant has no right to challenge release of accommodation in question in favour of landlord. 18. Thus status of the occupant, whether unauthorised or not, would itself make no difference so far as the application of Act, 1972 upon building is concerned. The Courts below have clearly erred in law by deciding the question about applicability of Act, 1972 in a casual and cursory manner, and, that too, without considering various provisions of the Act and law on the subject concerned. 19. The issue of application of Act, 1972 has to be considered on its own merits for the reason that in case, Act is applicable upon the building, a suit for ejectment would be governed by Section 20 of Act, 1972, but, that by itself would not make the building free from applicability of Act, 1972, i.e., availability of such building for allotment to other needy person. But, if the Act, 1972 is not applicable, then a suit for ejectment in Civil Court would be maintainable against a trespasser or unauthorised occupant, and, necessary result would be that building, after ejectment of such person, will be available to the landlord without attracting provisions of allotment etc. under Act, 1972. 20. In view of above discussions, it cannot be said that Courts below have decided the issue regarding applicability of Act, 1972 in correct and lawful manner. Both the questions, therefore, are answered in favour of appellant. 21. However, in my view, since the appropriate pleadings are already available, lower Appellate Court, being also a Court of fact, itself can look into this aspect. Therefore, I set aside the judgment and decree of lower Appellate Court in Civil Appeal No. 15 of 2012, impugned in this appeal, and, remand the matter to it, to re-consider the issue of applicability of Act, 1972 upon the building in question, and, thereafter, to decide other issues in the light of its finding on that issue. 22. The appeal is allowed in the manner as above. 23. No costs. ——————