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2020 DIGILAW 1208 (ALL)

Leela Devi v. Ramchandra Prasad

2020-10-12

VIVEK KUMAR BIRLA

body2020
JUDGMENT : 1. Heard Sri Abhishek Kumar, learned counsel for the petitioner-tenant and Ms. Rajni Ojha, learned counsel for the respondents-landlord and perused the record. 2. Present petition has been filed challenging the judgment and order dated 31.1.2020 passed by the Additional Sessions Judge, Ballia in Civil Misc. Case No. 205 of 2017 under Section 24 of the UP Act No. 13 of 1972 (Leela Devi vs. Ramchandra Prasad and others). 3. The admitted facts, shorn of details, are that in regard to the property in dispute a release application was filed by the respondents-landlord under Section 21(1)(a) of the UP Act 13 of 1972, which was contested by the petitioner-tenant herein upto the Hon'ble Apex Court without success and thereafter, in execution proceedings the possession of the property in question was handed over to the landlord. 4. It is submitted that after the possession was taken over by the landlord, property in question was demolished and even that property has been transferred to a third person whereas a litigation in respect of ownership of the property is pending between the parties. Therefore, after the execution proceedings were finalized, the petitioner-tenant moved an application under Section 24 of the UP Act No. 13 of 1972 for re-entry in the property in question on the ground that the release application was not bona fide and the purpose of the release application stood frustrated, therefore, the petitioner-tenant herein has a right to re-entry in the property in question. That application was rejected by the court below. 5. Submission is that the court below has incorrectly observed that once the tenant has lost upto to the Hon'ble Apex Court, therefore, now proceedings initiated under Section 24 of the UP Act No. 13 of 1972 cannot be permitted as a thing which cannot be done directly, cannot be allowed to be done indirectly. He submits that judgment relied on by the petitioner-tenant was incorrectly distinguished and the judgment relied on by the respondents-landlord is not applicable in the present case. 6. Per contra, learned counsel for the respondents-landlord has supported the impugned order. 7. I have considered the rival submissions and perused the record. 8. Insofar as the title of the property in question is concerned, a different dispute is pending between the parties. 6. Per contra, learned counsel for the respondents-landlord has supported the impugned order. 7. I have considered the rival submissions and perused the record. 8. Insofar as the title of the property in question is concerned, a different dispute is pending between the parties. The decree and the judgment of the court below has become final upto the Hon'ble Apex Court in respect of the tenant-landlord relationship and cannot be said to be affected by the title suit. 9. Therefore, insofar as the transfer of the property in question is concerned, prima facie, the doctrine of lis pendens would apply in the concerned case. However, no specific opinion is being expressed in this regard in this petition in hand. 10. To consider this case on merit, it would be beneficial to refer to Section 24 of the UP Act 13 of 1972, which is quoted as under : "24. Option of re-entry by tenant.-(1) Where a building is released in favour of the landlord and the tenant is evicted under section 21 or on appeal under section 22, and the landlord either puts or causes to be put into occupation thereof any person different from the person for whose occupation according to the landlord's representation, the building 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 prescribed authority may for sufficient cause allow from the date of his obtaining possession or, in the case a building which was proposed to be occupied after some construction or reconstruction, from the date of completion thereof, or in the case of a building which was proposed to be demolished, omits to demolish it within two months or such extended period as the prescribed authority may for sufficient cause allow from the date of his obtaining possession, then the prescribed authority or, as the case may be, the District Judge. may, on an application in that behalf within three months from the date of such act or omission, order the landlord to place the evicted tenant in occupation of the building on the original terms and conditions, and on such order being made, the landlord and any person who may be in occupation thereof shall give vacant possession of the building to the said tenant, failing which, the prescribed authority shall put him into possession and may for that purpose use or cause to be used such force as may be necessary. (2) Where the landlord after obtaining a release order under clause (b) of subsection (1) of section 21 demolishes a building and constructs a new building or buildings on its site, then the District Magistrate may, 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 his requirements thinks fit, and thereupon that tenant shall be liable to pay as rent for such building an amount equivalent to one per cent per month of the cost of construction thereof (including the cost of demolition of the old building but not including the value of the land) and the building shall, subject to the tenant's liability to pay rent as aforesaid, be subject to the provisions of this Act, and where the tenant makes no such application or refuses or fails to take that building on lease within the time allowed by the District Magistrate, or subsequently ceases to occupy it or otherwise vacates it, that building shall also be exempt from the operation of this Act for the period or the remaining period, as the case may be, specified in sub-section (2) of section 2." (Emphasis supplied) 11. A perusal of Section 24 would clearly disclose that the right of re-entry is only in respect of a 'building' and not on a piece of land or inhabitable or demolished structure. In the present case, this Court is concerned with Section 24(1) only as release application was filed under Section 21(1)(a) of the UP Act 13 of 1972. 12. The Act itself applies to building. In the present case, this Court is concerned with Section 24(1) only as release application was filed under Section 21(1)(a) of the UP Act 13 of 1972. 12. The Act itself applies to building. Section 29-A is the only exception to the same, which was added vide Amendment Act No. 28 of 1976 in the UP Act 13 of 1972 (Section 20) with effect from 5.7.1976 with specific purpose. Undisputedly, this provision is not applicable in the present case so no further discussion is required on that. 13. The term 'building' is defined under Section 3 (i) as under: "Section 3 (i): "Building", means a residential or non-residential roofed structure and includes (i) any land (including any garden), garages and out-houses, appurtenant to such building; (ii) any furniture supplied by the landlord for use in such building; (iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof;" (Emphasis supplied) 14. Needless to point out that in this definition, the word "any land' is the land "appurtenant to such building." Therefore, existence of a building is a must. After alleged demolition of relevant building, only land or inhabitable or demolished structure is in existence without there being any 'building' existing therein. 15. Therefore, clearly, right of re-entry under Section 24 of the UP Act No. 13 of 1972 is in regard to the "building" only where the same is in existing form or re-constructed after demolition and there is no power to direct the re-entry over the vacant land of the demolished building or over which the demolished building was once existing. The Court below has rightly relied on the judgment in Shiv Kumar vs. Additional District Judge, Bulandshahar and others, 1980 ARC 400 in this regard, paragraphs 2 and 3 whereof are quoted as under: "2. Taking the first point first. I am clearly of the view that the impugned order is without jurisdiction. It is settled law that statutory authorities and tribunals can exercise only such powers as are specifically conferred upon them. The learned District Judge passing the impugned order was acting as a statutory tribunal. He was not exercising the jurisdiction of an ordinary civil court. I am clearly of the view that the impugned order is without jurisdiction. It is settled law that statutory authorities and tribunals can exercise only such powers as are specifically conferred upon them. The learned District Judge passing the impugned order was acting as a statutory tribunal. He was not exercising the jurisdiction of an ordinary civil court. Under the provisions of U.P. Act No. XIII of 1972, there is only one provision, namely, Section 24 of the Act which confers a right of re-entry on the former tenants who have been evicted under Section 21 of the Act. The legislature has laid down the precise procedure for enabling such a tenant to get back either the accommodation as it existed or the accommodation which has been reconstructed after demolition. The Act has conferred upon the named authority specific powers towards that end. Section 24 ........" 3. I am fortified in the view which I am taking as regards the power of the court by a direct authority of this Court, namely, Shrimati Sundera Devi vs. Prescribed Authority and others, 1977 UPRCC 419. A learned Single Judge who had occasion to deal with the precise question with which I am concerned, observed thus: "It is obvious that the power to put the tenant back in possession of his tenanted accommodation could be exercised only if the building had not be demolished and was available for occupation in its original condition. The expression 'placed evicted tenant in occupation of the building' consequently implies the existence of the building. The power is not available when the building has been demolished. It does not authorise the prescribed authority or the District Judge to direct that the tenant shall occupy the side of the building and put his own structure temporary or otherwise." (Emphasis supplied) 16. To my mind, in the above quoted paragraph of Shrimati Sundera Devi (supra) in second last line the word "side" should be "site". Hence, there appears to be a typing mistake. 17. I have perused the judgment relied on by the petitioner in the court below. In my opinion, the court below has rightly distinguished the judgment relied on by the tenant-petitioner as in that case the proceedings were pending before this Court. 18. Hence, there appears to be a typing mistake. 17. I have perused the judgment relied on by the petitioner in the court below. In my opinion, the court below has rightly distinguished the judgment relied on by the tenant-petitioner as in that case the proceedings were pending before this Court. 18. In Anand Kumar vs. Tulsi Ram, 2005 (2) JCLR 323 Alld : 2004 (2) ARC 832 release application of the landlord was allowed ex-parte, which was set aside and release application was restored. The application filed by the tenant for restitution of possession under Section 144 CPC was allowed, which was challenged by the landlord without any success and in the meantime building was demolished whereas in the present case release application was filed in the year 2006 and was successfully contested by the tenant for long 11 years and ultimately he handed over possession in execution proceedings. The re-entry is being claimed after conclusion of the entire proceeding upto Hon'ble Supreme Court against him. Hence, on facts and provisions of law both, where restitution was claimed under Section 144 CPC (and Section 24 of the UP Act 13 of 1972 was not involved) the case of Anand Kumar (supra) is distinguishable. 19. There is yet another aspect to distinguish Anand Kumar (supra). In such matter, as observed by the Hon'ble Supreme Court in Hameed Kunju vs. Nazim, (2017) 8 SCC 611 (para 29) once the possession had been delivered and decree was recorded as satisfied in accordance with law, the litigation had come to an end leaving no lis pending. Paragraph 29 of the said judgment is quoted as under: "29. In our considered view, once the possession had been delivered and decree was recorded as satisfied in accordance with law, the litigation had come to an end leaving no lis pending. In these circumstances, in the absence of any prima facie case having been made out on any jurisdictional issue affecting the very jurisdiction of the court in passing the eviction decree, the High Court should have declined to examine the legality of four orders impugned therein." 20. Thus, I do not find any prima facie jurisdictional error or issue involved in the present case and thus, I do not find any good ground to interfere in the impugned judgment in exercise of powers under Section 227 of the Constitution of India. 21. Thus, I do not find any prima facie jurisdictional error or issue involved in the present case and thus, I do not find any good ground to interfere in the impugned judgment in exercise of powers under Section 227 of the Constitution of India. 21. Present petition is devoid of merit and is accordingly dismissed.