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Saturday, October 3, 2015

In Atma Ram Builders Private Limited v. A.K. Tuli and others[5], deprecating the conduct of the tenant after the first round of litigation was over by getting inducted another person, this Court expressed its anguish as under: - “4. It is deeply regrettable that in our country often litigations between the landlord and the tenant are fought up to the stage of the Supreme Court and when the tenant loses in this Court then he starts a second innings through someone claiming to be a co-tenant or as a sub-tenant or in some other capacity and in the second round of litigation the matter remains pending for years and the landlord cannot get possession despite the order of this Court. The time has come that this malpractice must now be stopped effectively.” In view of law laid down by this Court, as above, and considering the facts and circumstances of the present case, and conduct of respondents whereby persons in large number inducted unauthorisedly by them without any allotment order, Civil Appeal No. 3763 of 2007, filed by the landlord, deserves to be allowed, and Civil Appeal Nos. 5688-89 of 2007, filed by the respondents (contemnors before the single Judge of the High Court) are liable to be dismissed. We order accordingly. We further direct the Competent Authority (Additional District Magistrate, City, East, Lucknow) to execute the Form-D. However, keeping in mind that there are several occupants (inducted unauthorisedly without any allotment order), on humanitarian ground they are allowed three months’ time from today to vacate the premises voluntarily, whereafter they or anyone occupying in their place along with respondent Nos. 1 to 3 in Civil Appeal No. 3763 of 2007, shall be forcibly dispossessed within 48 hours in compliance of this order, as directed above. The District Magistrate and the Senior Superintendent of Police, Lucknow, are directed to provide every assistance in execution of the order of release, affirmed by the High Court in Writ Petition (R/C) No. 183 of 1991 on 26.5.1999. Needless to say that this Court has already dismissed Special Leave Petition (C) Nos. 24659-60 of 2002 on 10.12.2002, challenging the order passed in the writ petition by the High Court. We also clarify that the landlords are not allowed to let out the released building (in the existing condition), and they shall demolish the building for reconstruction for which the building has been released by the authority concerned.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3763 OF 2007

  Anil Kalra                                         … Appellant


                                   Versus

  J.D. Pandey and others                            …Respondents

                                    WITH

                      CIVIL APPEAL NOS. 5688-89 OF 2007







                               J U D G M E N T


Prafulla C. Pant, J.


The dispute in the present matter pertains to a hundred year  old  building,
which  is  covered  under  Uttar  Pradesh  Urban  Buildings  (Regulation  of
Letting, Rent and Eviction) Act, 1972  (for  short  UP  Act  13  of  1972”).
Section 13 of said Act placed restriction on landlord, tenant  and  also  on
any other person from occupying the building in any capacity, without  there
being an order of release in favour of landlord, or order  of  allotment  in
case of tenant.  The building in question is known as 7,  Dalibagh  situated
in Lucknow.  Originally said property was  owned  by  a  Barrister  Mohammad
Wasim and on his  migration  to  Pakistan,  vested  with  the  Custodian  of
Evacuee Property, and thereafter settled in favour of Rai  Bahadur  Lakshman
Das, a displaced person.  But it appears that physical possession could  not
be delivered to the allottee as the building was in  occupation  of  several
tenants.  It is pleaded that  the  appellant  Anil  Kalra,  along  with  his
brother, sister and two others, has stepped into the shoes of the  landlords
through Dr. Mulk Raj, Dwarika Das and Banarasi Das,  heirs  of  Rai  Bahadur
Lakshman Das by way of sale deeds executed in the years  1982-1983.   It  is
alleged by the appellant that after the tenants  vacated  the  premises,  an
application was moved under Section 16(1)(b)  of  UP  Act  13  of  1972  for
release of  the  building  for  demolition  and  reconstruction  before  the
Competent Authority (authorized Additional District Magistrate).

The Competent Authority called for a report  from  Rent  Control  Inspector,
who inspected the spot and reported on 14.11.1984 that the  Office  of  Cane
Commissioner (tenant on the part of  the  building)  was  in  the  midst  of
vacating the same.  He further reported that as  per  information  received,
Respondent No. 2 Mrigendra Pandey and  Respondent  No.  3  Nripendra  Pandey
(both sons of Dr. J.D. Pandey), under the banner  of  M/s.  Swargiya  Sanjay
Gandhi Sahkari  Avas  Samiti  Ltd,,  after  breaking  open  the  locks,  had
unauthorizedly occupied the building.  It was further reported by  the  Rent
Control Inspector that the Deputy Cane  Commissioner  had  apprehended  that
the part vacated by him was also likely to be occupied by said society,  and
a First Information Report was  lodged  to  that  effect  and  the  District
Magistrate,  Lucknow,  was  also  informed  about  it.    With   the   above
information, the Rent Control Inspector recommended that deemed  vacancy  be
declared in respect of the building under Section 12(1)(b)  of UP Act 13  of
1972, and further reported that there was a case in favour of the  landlord-
appellant for getting released the building for the  purpose  of  demolition
and  reconstruction.   (Co-landlords  also  joined  Anil  Kalra  by   moving
separate application before the  Competent  Authority  (Additional  District
Magistrate, City, Lucknow).  On perusal of the report of  the  Rent  Control
Inspector and after inviting objections of concerned  parties,  vacancy  was
declared.  Thereafter, vide order dated  30.12.1986  (on  application  dated
25.2.1986), the Competent Authority issued the  order  for  release  of  the
building under Section 16(1)(b) of UP Act  13  of  1972  in  favour  of  the
appellant and co-landlords.  When  after  issuance  of  Form-C  unauthorized
occupants failed to vacate the building, Form-D was issued.

The unauthorized occupants filed a  review  petition  before  the  Competent
Authority  (Additional  District  Magistrate,  City),  but  the   same   was
dismissed  with  the  finding  that  the  occupants  were  transferees  from
Swargiya Sanjay Gandhi Sahkari Avas Samiti  Ltd.,  which  has  no  title  or
authority to occupy the building.  On this a  Rent  Revision  was  filed  by
respondent Nos. 1 to 3 (Dr. J.D. Pandey and his two  sons  Mrigendra  Pandey
and Nripendra Pandey, both  advocates).   The  revision  was  decided  by  V
Additional District Judge, Lucknow, vide order dated 28.10.1991,  in  favour
of  said  respondents.   The  appellant  and  co-landlords  filed  the  Writ
Petition No. 183 (R/C) of 1991  before  the  High  Court  of  Judicature  at
Allahabad, Lucknow Bench, challenging the order  passed  by  the  revisional
court.  After hearing the parties, the writ  petition  was  allowed  by  the
High  Court,  vide  order  dated  26.5.1999  with  the  direction  that  the
proceedings for  delivery  of  possession  to  the  landlord  shall  be  re-
initiated from the stage they were  stayed.   The  application  for  recall,
filed by respondent Nos. 1 to 3, was dismissed on 4.7.2002.  That  round  of
litigation attained finality with the dismissal of  Special  Leave  Petition
(C) Nos. 24659-60 of 2002 on 10.12.2002, by this Court.

In the above circumstances, the appellant moved  application  for  execution
of Form-D before the Rent Control Officer (Additional  District  Magistrate,
City, East, Lucknow), and on 22.2,2003 said authority issued  direction  for
execution of Form-D.  It is alleged by the appellant that to  frustrate  the
release order, respondent  Nos.  1  to  3  offered  to  give  possession  of
thirteen rooms only,  and  got  the  eviction  proceedings  stalled  against
unauthorized occupants.  This gave cause to the appellant to  file  Contempt
Petition No. 265 of 2003 before the High Court.   In  said  proceeding  also
respondent Nos. 1 to 3 expressed willingness  to  hand  over  possession  of
thirteen rooms only and not the building.  The  single  Judge,  hearing  the
contempt petition, directed the Rent Control  Officer  (Additional  District
Magistrate, City) to comply the order of the High Court, passed in the  writ
petition, against which Special Leave Petition (C)  Nos.  24659-60  of  2002
had been dismissed.  Respondent Nos. 1 to 3 filed Contempt Appeal No. 51  of
2006 against the interim order dated 1.12.2006, passed by the Judge  hearing
the  contempt  petition.   The  contempt  appeal  was   dismissed   as   not
maintainable.  Thereafter,  the  respondents  filed  Special  Appeal  (Intra
Court Appeal) No. 923 of 2006 before the High Court.  The  appellant  raised
a preliminary objection that no Special Appeal is maintainable  against  the
order of the Judge hearing the contempt petition.  However, the  High  Court
rejected the preliminary objection.   Hence,  this  appeal  through  special
leave, before us.  Connected Civil Appeal Nos. 5688-89 of 2007 are filed  by
respondent Nos. 1 to 3 of the Civil Appeal No.  3763  of  2007  against  the
judgment and orders dated 1.12.2006 and 8.12.2006, passed by the High  Court
in Criminal Miscellaneous Case No. 265 of 2006 and Contempt  Appeal  No.  51
of 2006.

Mr. Pradeep Kant, learned senior counsel for the appellant,  submitted  that
respondent Nos. 1 to 3 cannot be allowed to  frustrate  the  orders  of  the
court passed in the first round of litigation, which attained finality  with
the dismissal of Special Leave Petition (C) Nos. 24659-60 of 2002.   On  the
other hand, Mr. Dinesh Kumar Garg, learned counsel for the  respondents  and
affected parties, submitted that the  landlords  are  not  entitled  to  the
release of more than thirteen rooms vacated by the Cane Commissioner.


However, the respondents failed  to  show  that  under  what  authority  the
building was being occupied by respondent  Nos.  1  to  3  and  let  out  to
various occupants in violation of Section 11 of  the  UP  Act  13  of  1972.
Section 11 reads as under: -
“11. Prohibition of letting without allotment order. – Save  as  hereinafter
provided, no person shall  let  any  building  except  in  pursuance  of  an
allotment order issued under Section 16.”

There is no  allotment  order  issued  in  favour  of  any  of  the  alleged
occupants under Section 16 of the UP Act 13 of 1972.  It is not  in  dispute
that the building is old and covered under sub-section (2) of Section  2  of
the  Uttar  Pradesh  Urban  Buildings  (Regulation  of  Letting,  Rent   and
Eviction) Act, 1972,  which  was  initially  applicable  to  ten  years  old
buildings as on 15.7.1972.  By UP Act 28 of  1976  words  “ten  years”  were
substituted by “twenty years”, and by UP Act No. 11 of 1988  “twenty  years”
were substituted with “forty years”.  As such, in any case the building  was
covered under the Act and not exempted under any of  the  clauses  mentioned
in Section 2 of the UP Act No. 13 of 1972.

The expression “District Magistrate” is defined in clause (c) of  Section  3
and includes an officer authorized by the District Magistrate  to  exercise,
perform and discharge all or any of his powers, functions and  duties  under
the Act.  Clause (b) of sub-Section (1) of Section 12 of UP Act  No.  13  of
1972 provides that a landlord or a tenant of a building shall be  deemed  to
have ceased to occupy the building or a part thereof if he  has  allowed  it
to be occupied by any person who is not a member of his family.  Section  13
of the Act provides that where a landlord  or  tenant  ceases  to  occupy  a
building or part thereof, no person shall occupy it in any capacity  on  his
behalf of otherwise than under  an  order  of  allotment  or  release  under
Section 16.  Clause (b) of sub-section (1) of Section 16 provides  that  the
District Magistrate may by an order release the whole or  any  part  of  the
vacant building in favour of the landlord.


In Firm  Ganpat  Ram  Rajkumar  v.  Kalu  Ram  and  others[1],  this  Court,
commenting on the conduct of the occupants on behalf of the firm, in a  case
under Haryana Urban (Control of Rent and Eviction) Act, 1973,  has  observed
as under: -
“5. In the  aforesaid  view  of  the  matter,  the  question  that  requires
consideration is how will this order of eviction passed by  the  High  Court
and confirmed by this Court by dismissing the special leave petition on  the
terms mentioned hereinbefore on 24-8-1987 is to be enforced or  implemented?
In our opinion, the said order must be implemented and cannot be allowed  to
be defeated by the dubious methods adopted by the partners of the said  firm
of Ganpat Ram Rajkumar. The whole conduct betrays a  calculated  attempt  to
defeat the order of this Court and to mislead this Court.  If  that  is  the
position, in our opinion, parties cannot be allowed to do so  and  get  away
by misleading this Court………..”

In Zahurul Islam v. Abul Kalam and others[2], after  a  decree  of  eviction
passed by the Competent Court,  a  miscellaneous  judicial  case  was  filed
before the Second Court of  the  Assistant  District  Judge,  Alipore,  West
Bengal  on  the  basis  of  forged  rent  receipts  to  get  the   execution
proceedings stalled.  Commenting on the conduct of the tenant, in said  case
this Court made following observations: -
“11. After considering the respective contentions  of  the  learned  counsel
for the parties and the affidavits filed by Respondent 6,  M/s  Hind  Barrel
Co. and Respondents 13 to 15, it  appears  to  us  that  in  the  facts  and
circumstances of the case, the petitioner is entitled to  a  direction  from
this Court that the decree should be executed immediately by  the  executing
court and delivery of the entirety of  the  suit  premises  covered  by  the
decree under execution,  should  be  delivered  to  the  decree-holder,  the
petitioner, Zahurul Islam, by the executing court by evicting Respondent  1,
Abul Kalam and the other respondents including Respondents 6 and  13  to  15
and any other person in possession of any portion of the disputed  premises,
if necessary, with the police help…………….”

In Gayatri Devi and others v. Shashi  Pal  Singh[3],  in  a  case  initiated
under Delhi  Rent  Control  Act  challenging  eviction  decree,  this  Court
expressed its concern in following words: -
“13. The history of this litigation shows nothing but  cussedness  and  lack
of bona fides on the part of the respondent. Apart  from  his  tenacity  and
determination to prevent the appellants from  enjoying  the  fruits  of  the
decree, there appears to be nothing commendable in the case. Even before  us
the same arguments of fraud,  and  that  the  appellants  were  not  legally
owners of the suit property, were pleaded.

            xxx              xxx             xxx

18. Considering that the respondent has deliberately delayed the  execution,
the executing court shall dispose of the execution proceedings  with  utmost
dispatch.”

In M. Meeramytheen and others  v.  K.  Parameswaran  Pillai  and  others[4],
considering the delay made by tenants in vacating the premises after  orders
passed under Kerala  Buildings  (Lease  and  Rent  Control)  Act,  1965,  by
getting inducted sub-tenant, this Court issued following directions: -
“14. The executing court will see that delivery of  possession  is  effected
within a period of fifteen days from the date of  filing  of  the  execution
petition  or  the  application  aforementioned.  In  case  for  delivery  of
possession any armed force is necessary, the same shall be  deputed  by  the
Superintendent of Police within forty-eight hours from the date  requisition
is received therefor. It is also directed that in case anybody  else,  other
than the tenants, is found in possession,  he  shall  also  be  dispossessed
from the premises in question.”

In  Atma  Ram  Builders  Private  Limited  v.  A.K.  Tuli   and   others[5],
deprecating the conduct of the tenant after the first  round  of  litigation
was over by getting  inducted  another  person,  this  Court  expressed  its
anguish as under: -
“4. It is deeply regrettable that in our country often  litigations  between
the landlord and the tenant are fought up to the stage of the Supreme  Court
and when the tenant loses in this Court then  he  starts  a  second  innings
through someone claiming to be a co-tenant or as a  sub-tenant  or  in  some
other capacity and in the second round  of  litigation  the  matter  remains
pending for years and the landlord cannot get possession despite  the  order
of this Court. The time has come that this malpractice must now  be  stopped
effectively.”

In view of law laid down by this Court, as above, and considering the  facts
and circumstances of the present case, and conduct  of  respondents  whereby
persons  in  large  number  inducted  unauthorisedly  by  them  without  any
allotment order, Civil Appeal No. 3763  of  2007,  filed  by  the  landlord,
deserves to be allowed, and Civil Appeal Nos. 5688-89 of 2007, filed by  the
respondents (contemnors before the single  Judge  of  the  High  Court)  are
liable to be dismissed.   We  order  accordingly.   We  further  direct  the
Competent Authority (Additional District Magistrate,  City,  East,  Lucknow)
to execute the Form-D.  However, keeping in  mind  that  there  are  several
occupants  (inducted  unauthorisedly  without  any  allotment   order),   on
humanitarian ground they are  allowed  three  months’  time  from  today  to
vacate the premises voluntarily, whereafter  they  or  anyone  occupying  in
their place along with respondent Nos. 1 to 3 in Civil Appeal  No.  3763  of
2007, shall be forcibly dispossessed within 48 hours in compliance  of  this
order,  as  directed  above.  The  District  Magistrate   and   the   Senior
Superintendent of Police, Lucknow, are directed to provide every  assistance
in execution of the order of release, affirmed by the  High  Court  in  Writ
Petition (R/C) No. 183 of 1991 on  26.5.1999.  Needless  to  say  that  this
Court has already dismissed Special Leave  Petition  (C)  Nos.  24659-60  of
2002 on 10.12.2002, challenging the order passed in  the  writ  petition  by
the High Court.  We also clarify that the landlords are not allowed  to  let
out the released building  (in  the  existing  condition),  and  they  shall
demolish the building for reconstruction for which  the  building  has  been
released by the authority concerned.

With the directions, as above, Civil Appeal No. 3763 of 2007 is allowed  and
Civil Appeal Nos. 5688-89 of 2007 stand dismissed.  There shall be no  order
as to costs.


                                                           ……………….....…………J.
                                                               [Dipak Misra]


New Delhi;                                .……………….……………J.
September 29, 2015.                       [Prafulla C. Pant]
-----------------------
[1]    1989 Supp (2) SCC 418

[2]    1995 Supp (1) SCC 464

[3]    (2005) 5 SCC 527

[4]    (2010) 15 SCC 359
[5]    (2011) 6 SCC 385


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