GEETA GUPTA versus RAMESH CHANDRA DWIVEDI & ORS.

[2021] 9 S.C.R. 73

GEETA GUPTA

RAMESH CHANDRA DWIVEDI & ORS.

(Civil Appeal No. 4750 of 2011)

SEPTEMBER 20, 2021

[AJAY RASTOGI AND ABHAY S. OKA, JJ.]

Uttar Pradesh Urban Buildings (Regulation of Letting, Rentand Eviction) Act, 1972 – Uttar Pradesh Urban Buildings (Regulationof Letting, Rent and Eviction) Rules, 1972 – The appellant acquireda property by sale deed dated 13.03.1994 – The said propertyincluded two gaddis, two godowns and tin shed (collectivelyreferred as disputed property), which was earlier given by thevendor/predecessors-in-title of the appellant to another person ‘D’by way of tenancy – An application was filed u/s.16 of the Act bythe second respondent for allotment of the said disputed property,on the premise that the disputed property had fallen vacant – Aninspection report was prepared – The report recorded that firstrespondent was carrying on his business in the said disputedproperty and he was inducted as tenant by ‘D’ in November 1975 –The Addl. City Magistrate held that the first respondent was incontinuous possession as tenant on the basis of an agreementdated 15.11.1975 and he had become tenant of the disputedpremises – Hence, the disputed property was not vacant – writpetition filed against the said judgment before the High Court wasrejected – Before the Supreme Court, the appellant contended thaton 05.07.1976, the disputed premises were vacant and afterpurchasing property in the year 1994, she has not received anyincome from the said property – Held: The first respondent has reliedon the agreement dated 15.11.1975 by which tenancy on him wasconferred – There is finding recorded by the Addl. City Magistratethat the predecessors-in-title of the appellant had never raised anyobjection right from the year 1975 regarding the possession of thefirst respondent – Thus, the first respondent was in possession as atenant prior to 05.07.1976 – So, he shall be deemed to be tenant byvirtue of s.14 of the Act – There is no fault in the order of the Addl.City Magistrate – Therefore, if appellant wants eviction of the first

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Arespondent, she will have to take recourse to s.20 or s.21 of the Act– However, the first respondent is directed to deposit all the arrearsof rent in pending proceedings u/s.30 of the Act before the Court ofCivil Judge – Thus, there is no error in the view taken by the Addl.City Magistrate and confirmation of the same by the High Court.

BDismissing the appeal, the Court

HELD: 1. The first respondent relied upon the agreementdated 15[th] November, 1975 purportedly executed by the said ‘D’claiming to be the power of attorney holder and manager of theoriginal owners. The first respondent is the second party to theCsaid Agreement on whom tenancy in respect of the disputedpremises was conferred. The finding of fact recorded by the Addl.City Magistrate is that the original owners never denied that thesaid ‘D’ was their attorney or manager and that the original ownersneither served any notice nor filed suit for eviction. In thecounter, the first respondent has relied upon the said agreement.DIn the rejoinder, the appellant alleged that the said documentwas fabricated. However, the petitioner has not produced onrecord anything to show that from 1975 to 1994, the originalowners raised any objection to the induction of the firstrespondent as tenant of the disputed premises in the year 1975.EThus, the first respondent was inducted in possession as tenantprior to 5[th] July, 1976. The finding recorded by the Addl. CityMagistrate is that to the presence of the first respondent, thepredecessors-in-title, of the appellant had never raised anyobjection right from the year 1975. Therefore, the Addl. CityMagistrate concluded that in absence of the evidence ofFpredecessors-in-title of the appellant, it is very difficult to acceptthat right from the year 1975, the first respondent continued tobe in possession without the consent of the original owners.There is nothing wrong about this inference drawn by the Addl.Magistrate that the first respondent was inducted with the consentGof the predecessors-in-title of the appellant. This Court finds noerror in the said view taken by the Addl. City Magistrate andconfirmed by the High Court. [Para 12][79-B-G]

2. As the first respondent was tenant in possession on 5[th]July, 1976 with the consent of the original owners, he shall be

deemed to be tenant by virtue of Section 14 of the said Act.[Para 13][79-G-H]

3. Therefore, there is no reason to find fault with the Orderof the Addl. City Magistrate. By virtue of Section 14, the firstrespondent gets the protection as tenant under the said Act.Therefore, if the appellant wants the first respondent to beevicted, she will have to take recourse to section 20 of the saidAct. Depending upon the circumstances, she has also an optionto take recourse to section 21 of the said Act. [Para 14][80-A-B]

4. The first respondent is directed to deposit all the arrearsof rent and thereafter, continue to regularly deposit the rent inthe proceedings pending u/s. 30 of the Act before the Civil Judge.He can also pay the amount to the petitioner. The petitioner canalways apply for withdrawal of the rent amount in accordance withsub-section (3) of section 30 of the said Act. If evictionproceedings are filed by the petitioner, considering the case ofthe petitioner that she is deprived of the benefit of the disputedpremises right from year 1994, the concerned authority or theCourt, as the case may be, shall give priority to the disposal ofthe eviction proceedings. [Para 17][80-F-G]

Achal Misra v. Rama Shanker Singh & Ors. (2005) 5SCC 531 : [2005] 3 SCR 439; Ram Murti Devi v.Pushpa Devi & Ors. (2017) 15 SCC 230 : [2017] 7SCR 872; Harish Tandon v. Addl. District Magistrate,Allahabad, U.P. & Ors. (1995) 1 SCC 537 : [1995] 1SCR 56 – held inapplicable.

Case Law Reference

[2005] 3 SCR 439held inapplicablePara 6[2017] 7 SCR 872held inapplicablePara 61995] 1 SCR 56held inapplicablePara 6

CIVIL APPELLATE JURISDICTION: Civil Appeal No.4750 of2011.

From the Judgment and Order dated 09.10.2009 of the High Courtof Judicature at Allahabad in Writ A. No.12203 of 1997.

AS. B. Upadhyay, Sr. Adv., Ms. Kumud Lata Das, Y. K. S. Chauhan,Ms. Indu Kaul, Advs. for the Appellant.

Anand Verma, Ms. Chitranka Naik, Rajeev Kumar Dubey,Kamlendra Mishra, Advs. for the Respondents.

The Judgment of the Court was delivered byB

ABHAY S. OKA, J.

1. By this appeal, the appellant who was the writ petitioner beforethe High Court at Allahabad has taken an exception to the Judgment andOrder dated 9th October, 2009 passed by the learned Single Judge ofCAllahabad High Court.

2. The appellant is claiming to be the owner of premises No. 74/13, Collectorganj, Kanpur Nagar, Uttar Pradesh. The appellant acquiredthe said premises by sale deed dated 13[th] March, 1994 executed bypower of attorney holder on behalf of the original owners Shri VishnuDSwaroop Mishra and Shri Gopal Swaroop Mishra. The petitioner claimedthat the physical possession of the premises subject matter of the saledeed was handed over to her by her vendors which includes two Gaddis,two godowns and tin shed (collectively referred as “the disputedpremises”) which was earlier given by the appellant’s vendorto one DhruvNarayan Tripathi by way of tenancy.

3. An application was made by the second respondent for allotmentof the disputed premises by invoking Section 16 of the Uttar PradeshUrban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972(for short the “the said Act”). The application was made on the premisethat the disputed premises have fallen vacant in accordance with sub-Fsection (4) of Section 12 of the said Act. On the basis of the saidapplication, in accordance with Rule 8(2) of the Uttar Pradesh UrbanBuildings (Regulation of Letting, Rent and Eviction) Rules, 1972, aninspection report dated 20[th] May 1995 was submitted to the DistrictMagistrate. The report recorded that the first respondent-RameshChandra Dwivediwas carrying on business in the disputed premises inGthe name and style of M/s Ramesh Chandra Pravesh Kumar. It wasstated in the report thatfirst respondent informed that he was inductedas tenant by Shri Dhruv Narayan Tripathi in the disputed premises inNovember 1975 at monthly rent of Rs.500/-. The District Magistrate(Addl. City Magistrate-VI)while exercising the powers under the said

Actheld that on the basis of the agreement dated 15[th] November, 1975,the first respondent was inducted as tenant by the said Dhruv NarayanTripathi acting as power of attorney holder and manager of the owners.He held that the original owners never objected to the action of the saidDhruv Narayan Tripathi. The Addl. City Magistrate held that the firstrespondent was in continuous possession as tenant on the basis of thesaid agreement dated 15[th] November, 1975 and therefore,he has becomea tenant of the disputed premises. Hence, it was held that the disputedpremises were not vacant within the meaning of sub-section (4) of Section12 of the said Act.

4. writ petition was preferred by the petitioner against the saidJudgment and Order of the Addl. City Magistrate, which was rejectedby the impugned Judgment and Order dated 15[th] November, 1975.

5. The learned counsel appearing for the appellant in support ofthe appeal submitted that the said Dhruv Narayan Tripathi had no authorityto induct the first respondent as tenant on behalf of the predecessors-in-title of the petitioner. She submitted that the said Dhruv NarayanTripathi was the tenant inducted by the predecessors-in-title of theappellant. She submitted that on 5[th] July, 1976, the disputed premiseswere vacant. She submitted that the petitioner purchased the property inthe year 1994 and from that day, she has not received any income fromthe disputed premises. She submitted that the writ petition before theAllahabad High Court was of the year 1997 which was decided on 09[th]October, 2009 and that the present appeal is of the year 2011. Thus, thesubmission is that during the last 27 years, the appellant has not receivedany benefit from the disputed premises.

6. The learned counsel appearing for the appellant placed relianceon the decisions of the Apex Court in the case of Achal Misra v. RamaShanker Singh & Ors.,[1]Ram Murti Devi v. Pushpa Devi &Ors.[2]and Harish Tandon v. Addl. District Magistrate, Allahabad, U.P.& Ors.[3]

7. The learned counsel appearing for the first respondent invitedour attention to the findings recorded by the Addl. City Magistrate holdingthat the first respondent has been in possession of the disputed premisessince 1975 and is paying rent even prior to 5[th] July, 1976. He invited our

1 (2005) 5 SCC 5312 (2017) 15 SCC 2303 (1995) 1 SCC 537

Aattention to the deposit of the rent made by the first respondent in theCourt of Civil Judge, (Junior Division) Kanpur Nagar by taking recourseto sub-section (1) of Section 30 of the said Act. He submitted that as perhis instructions, the first respondent has been regularly depositing therent in the said proceedings and even if some part of the rent is notdeposited, the first respondent shall do so.B

8. The learned counsel appearing for the appellant by way ofrejoinder to the submissions made by the learned counsel appearing forthe first respondent urged that it will be unjust to drive the appellant tofile suit for eviction 27 years after she purchased the disputed premises.

C9. We have carefully considered the submissions. We have perusedthe material on record, as well as the provisions of the said Act. Sub-section (1) of Section 12 incorporates the concept of deemed vacancyof the building in certain cases. Under clause (b) of sub-section (1) ofSection 12, tenant of building shall be deemed to have ceased tooccupy the building or part thereof if he has allowed it to be occupiedDby any person who is not member of his family. Sub-section (2) ofSection 12 lays down that in case of non-residential buildings, where atenant carrying on business in the building admits person who is not amember of his family as partner, the tenant shall be deemed to haveceased to occupy the building. Sub-Section (4) of Section 12 of the saidEAct provides that any building or part of which landlord or tenant hasceased to occupy within the meaning of sub-sections (1) or (2) of Section12 shall be deemed to be vacant.

10. Under clause (a) of sub-section (1) of Section 16 of the saidAct, the District Magistrate is empowered to require any landlord to letFany building which has fallen vacant to any person specified in the order.

11. Section 14 of the said Act is material which is thus:

“14. Regularisation or occupation of existing tenants.-[Notwithstanding anything contained in this Act or any other lawfor the time being in force, any licensee (within the meaning ofGSection 2-A) or tenant in occupation of building with theconsent of the landlord immediately before the commencementof the Uttar Pradesh Urban Buildings (Regulation of Letting, Rentand Eviction) (Amendment) Act, 1976, not being person againstwhom any suit or proceeding for eviction is pending before any

court or authority on the date of such commencement shall bedeemed to be an authorised licensee or tenant of such building].”

Under Section 14, tenant in occupation of building with theconsent of the landlord immediately before the commencement of theU.P. Urban Buildings (Regulation of Letting, Rent and Eviction)(Amendment Act), 1976 shall be deemed to an authorised tenant. Thedate of commencement of the Amendment Act is 5[th] July, 1976.

12. The first respondent relied upon the agreement dated15[th] November, 1975 purportedly executed by the said Dhruv NarayanTripathi claiming to be the power of attorney holder and manager of theoriginal owners. The first respondent is the second party to the saidAgreement on whom tenancy in respect of the disputed premises wasconferred. The finding of fact recorded by the Addl. City Magistrate isthat the original owners never denied that the said Dhruv Narayan Tripathiwas their attorney or manager and that the original owners neither servedany notice nor filed suit for eviction. In the counter, the first respondenthas relied upon the said agreement atAnnexure R-4 in paragraph 5. Inthe rejoinder, the appellant alleged that the said document was fabricated.However, the petitioner has not produced on record anything to showthat from 1975 to 1994, the original owners raised any objection to theinduction of the first respondent as tenant of the disputed premises inthe year 1975. Thus, the first respondent was inducted in possession asa tenant prior to 5[th] July, 1976. The finding recorded by the Addl. CityMagistrate is that to the presence of the first respondent, thepredecessors-in-title, of the appellant had never raised any objectionright from the year 1975. Therefore, the Addl. City Magistrate concludedthat in absence of the evidence of predecessors-in-title of the appellant,it is very difficult to accept that right from the year 1975, the firstrespondent continued to be in possession without the consent of theoriginal owners. There is nothing wrong about this inference drawn bythe Addl. Magistrate that the first respondent was inducted with theconsent of the predecessors-in-title of the appellant.We find no error inthe said view taken by the Addl. City Magistrate and confirmed by theHigh Court.

13. As the first respondent was tenant in possession on 5[th] July,1976 with the consent of the original owners,he shall be deemed to be atenant by virtue of Section 14 of the said Act.

ABC

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A14. Therefore, there is no reason to find fault with the Order ofthe Addl. City Magistrate. By virtue of Section 14, the first respondentgets the protection as tenant under the said Act. Therefore, if theappellant wants the first respondent to be evicted, she will have to takerecourse to section 20 of the said Act. Depending upon the circumstances,she has also an option to take recourse to section 21 of the said Act.B

15. We have carefully perused the decisions relied upon by theappellant. The decision in the case of Achal Misra (supra) holds thatan order notifying vacancy under section 12 of the said Act can bechallenged by filing writ petition or it can be challenged after an orderof allotment is made by adopting remedy under section 18 of the saidCAct. Even the decision in the case of Harish Tandon (supra) has nobearing on the controversy in this appeal. Lastly, the decision in thecase of Ram Murti Devi (supra) does not deal with the issue involved.It deals with the issue of unlawful subletting. None of these decisionshave any application to the facts of this case.

D16. Though there is no merit in the appeal, it will be necessary toensure that the first respondent regularly pays rent in respect of thedisputed premises. In the objections filed by the first respondent, he hasspecifically taken stand that the first respondent has filed Misc. CaseNo. 284/70/04 in the Court of Civil Judge, (Junior Division)at KanpurNagar under sub-section (1) of Section 30 of the said Act. The learnedEcounsel appearing for first respondent claimed that the entire amount ofrent has been deposited in the said case.

17. We direct the first respondent to deposit all the arrears ofrent, if any,up to 31[st] August, 2021 within period of six weeks fromtoday and thereafter, continue to regularly depositthe rentin theFaforesaidproceedings. He can also pay the amount to the petitioner. Thepetitioner can always apply for withdrawal of the rent amount inaccordance with sub-section (3) of section 30 of the said Act. If evictionproceedings are filed by the petitioner, considering the case of thepetitioner that she is deprived of the benefit of the disputed premisesright from year 1994,the concerned authority or the Court, as the caseGmay be,shall give priority to the disposal of the eviction proceedings.

18. Subject to what is directed above, there is no merit in theappeal and the same is accordingly dismissed.

Ankit GyanH