Shankari Devi (Smt.) Vs. District Judge and ors. - Court Judgment

Rajesh Tandon, J.

1. By the present writ petition, the petitioner has challenged the order passed by the Prescribed Authority as well as the Appellate Authority by which the release application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 has been rejected.

2. Briefly stated, an application was filed by the landlord Shankari Devi praying for the release of the premises situated at Aam Parav, Indira Nagar, Ward No. 3, House No. 54 Kotdwar, District Garhwal (Uttaranchal). The landlord Smt. Shankari Devi has filed an application that there are two shops, two rooms, one latrine, one gallery and verandah. The respondent No. 3 is occupying one shop as tenant since 1.1.1988 @ Rs. 350/- per month. The three grand sons of the landlord are major and are completely unemployed. The landlord has stated that she was employed at the health department and after retirement she is receiving pension. She did not receive sufficient fund after retirement and, therefore, she wants to get one of her grand son Durga engaged in the shop. It was also stated in Paragraph 10 that the tenant had already taken shop on 1.7.1996 in the market itself, in the name of Anjali Studio and Video Films and, therefore, hardship also lies in favour of the petitioner rather than the respondent-tenants.

3. The tenant has admitted the relationship of landlord and tenant between the parties. However, he has stated that since the letting has been made without any allotment order, therefore, the present application under Section 21 (1) (a) of the Act No. XIII of 1972 is not maintainable.

4. The Prescribed Authority vide his order dated rejected the application on the ground that the same is not maintainable in view of the judgment of the Apex Court in the case of Nutan Kumar and Ors. v. IInd Additional District Judge and Ors. reported, 2002 (2) Allahabad Rent Cases 645. The Prescribed Authority has failed to consider the requirement of the landlord.

5. Aggrieved by the aforesaid order, the landlord went in appeal. The Appellate Authority after considering the averments in the written statement has recorded the finding that the premises in dispute was let out in the year 1988 and there being no allotment in favour of the tenant, has rejected the application and confirmed the finding of the Prescribed Authority.

6. Counsel for the petitioner has submitted that in view of the law laid down by the Apex Court in Shiv Swarup Gupta v. Mahesh Chand Gupta, 1999 (6) SCC 222 : 1999 SCFBRC 330, as well as in G.C. Kapoor v. Nand Kumar Bhasin and Ors., 2002 (1) SCC 610 : 2001 SCFBRC 541, the landlord required the premises bonafide in order to accommodate the unemployed grand sons.

7. It may be pointed out that the decision of Nutan Kumar (supra) has been overruled by the Apex Court, 2002 (II) A.R.C. 645 in the case of Nutan Kumar. The Apex Court in the case of Nutan Kumar (supra) has upheld the decision in the case of Nanakram v. Kundalraj, 1986 (3) SCC 839 : 1986 SCFBRC 315 and has held that the case of Nanakram still holds filed of contract of tenancy and the contract would remain binding between the parties and could be enforce between themselves. The observations of the Apex Court are quoted below:

'7. In the case of Nanakram v. Kundalraj, 1986 (2) SCR 839 : (1986) 3 SCC 83 : 1986 SCFBRC 315, the question was whether a lease in violation of statutory provisions was void. It was held that in the absence of any mandatory provision obliging eviction in case of contravention of the provisions of the Act the lease would not be void and the parties would be bound, as between themselves, to observe the conditions of lease. It was held that neither of them could assail the lease in a proceeding between themselves. This authority was in respect of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, whereunder also the landlord was obliged to intimate a vacancy to the Deputy Commissioner of the District and the Deputy Commissioner could allot or direct the landlord to let the house to any person. The provisions were more or less identical to the provisions of the said Act. This authority has directly dealt with the questions under consideration and answered them. The majority judgments takes note of this authority and holds as follows:

'With utmost humility and reverence it is stated that above observations are not compatible with provisions of Sections 10 and 23 of the Contract Act. Otherwise also, it is most respectfully pointed out that the statement of law contained in the said observation is, perhaps, in conflict with the law declared in the decisions of the Hon'ble Supreme Court in Wasman Shriniwas Kini v. Rati Lal Bhagwan Das and Co., 1959 (Supp 2) SCR 217; Shrikrishna Khanna v. Additional District Magistrate, Kanpur and Ors., 1975 (3) SCR 709; and Manna Lal Khetan v. Kedar Nath Khetan, 1977 (2) SCR 190''12. As Nanakram's case was decided by three Hon'ble Judges of this Court, it would also be binding on us. We are, therefore, not going into the question of correctness or otherwise of such a view. We may, however, mention that the impugned judgment dated 20th May 1993 of the Full Bench, is not correct for another reason also. Section 13 of the said Act specifically provides that a person who occupies, without an allotment order in his favour, shall be deemed to be an unauthorized occupant of such premises. As he is in unauthorized occupation he is like a trespasser. A suit for ejectment of trespasser to get back possession from a trespasser could always be filed. Such a suit would not be on the contract/agreement between the parties and would thus not be hit by principle of public policy also.

13. In this view of the matter the decision of the Full Bench dated 20th May 1993 cannot be sustained and is set aside. It is held that the law, as laid down in Nanakram's case, still holds field. Thus, unless the statute specifically provides that a contract contrary contrary to the provisions of the statute would be void the contract would remain binding between the parties and could be enforced between the parties themselves. Consequently, the judgment dated 20th September, 1993 dismissing the writ petition is set aside. The matter is sent back to the High Court for deciding the writ petition in accordance with law.'

8. In Shankar Lal Khandelwal v. IVth Additional District Judge, Mathura and Ors. reported in, 1998 (2) ARC, it has been held by the Allahabad High Court that since the lease between the landlord and tenant is binding between the parties, therefore, proceedings under Section 21 (1) (a) cannot be said to be not maintainable. The observations of the Allahabad High Court is quoted below:

'The landlord filed application under Section 21 (1) (a) of the Act on 22.1.1994 alleging that he was landlord of the accommodation in question. In Para 3 of the application it was stated that the petitioner is tenant of the said accommodation on monthly rent of Rs. 250/- per month. The petitioner himself admitted that respondent No. 3 is landlord and he is tenant of the disputed accommodation on monthly rent of Rs. 250 per month. It was never the case of the petitioner that he is unauthorised occupation of the accommodation in question as there was no allotment order in his favour. In Brij Nand Sahai Hajela v. IIIrd Additional District Judge and Ors., 1996 All. L.J. 1221 : 1996 (1) ARC 165, it has been held that if the application under Section 21 (1) (a) of the Act is filed on the allegation that there was no agreement of tenant between him and the tenant against whom the application under Section 21 (1) (a) is filed, the said application is maintainable under the provisions of the aforesaid Act.'

9. Similar view has been taken in the case of Brij Nandan Sahai Hajela v. IIIrd Additional District Judge, Shahjahanpur reported in, 1996 (1) ARC 165. The observations made in Paras 8 and 9 are to the following effect:

'In Smt. Protima Chatterji and Ors. v. Special Judge, Kanpur and Ors., 1992 (2) ARC 193, it was held that once the tenant admitted the relationship of landlord and tenant he cannot thereafter pleaded to be unauthorised occupant. The application filed under Section 21 (1) (a) of the Act is maintainable.

In Munni Lal v. Prescribed Authority, Agra and Ors., 1993 (II) LCD 388 : 1992 (2) ARC 86, it was held that proceedings of release under Section 21 (1) (a) of the U.P. Act No. XIII of 1972 and Section 16 (1) (b) of the Act can be taken simultaneously. There is no legal impediment in initiating or continuing simultaneous proceedings under both the provisions.'

10. In view of the aforesaid proposition of law, application under Section 21 (1) (a) is fully maintainable and the learned Prescribed Authority as well as the Appellate Authority have wrongly rejected the same. It is the case where the release application was filed as back as in the year 1996 by the landlady for the requirement of her grand sons, who are completely unemployed. It has come in the application under Section 21 (1) (a) of the Act that the tenant had already taken alternative shop in the main market within the municipal limits of Nagar Palika.

11. In view of the aforesaid, writ of certiorari is issued quashing the order passed by the Prescribed Authority as well as Appellate Authority. The Prescribed Authority is directed to decide the application under Section 21 (1) (a) of the U.P. Act No. XIII of 1972 within a period of six weeks from the date of filing of the certified copy of this order. Since the case is old one, therefore, application is directed to be disposed of by 5.11.2004 on merit after hearing the parties.

12. Writ petition is allowed. No order as to costs.