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Bansi Lal Sahu v. Prescribed Authority, Allahabad And Another
Comprehensive Summary of the Opinion (Satish Chandra, C.J.)
Factual and Procedural Background
A Division Bench was unable to follow the law as laid down by an earlier Division Bench in Smt. Sarju Devi v. Prescribed Authority, Kanpur, and referred a question of law to a larger Bench. The referred question asked whether the Prescribed Authority, while exercising jurisdiction under clause (rr) of Section 43(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, has jurisdiction to take subsequent events into consideration or to modify a permission previously granted under Section 3 of the 1947 Act so as to evict a tenant from a portion of a building although permission may have been granted in respect of the entire building.
The opinion analyses the relationship between clause (rr) of Section 43(2) of the 1972 Act (which operates notwithstanding the repeal of the 1947 Act) and Section 21 of the 1972 Act. On the facts before the court, it was undisputed that the landlord had been granted permission under Section 3 of the old (1947) Act, that the permission related to one of the grounds mentioned in Section 21 of the 1972 Act, and that the permission had become final. The Prescribed Authority, when approached under Section 21 read with Section 43(2)(rr), refused to consider subsequent events and directed the petitioner's eviction from the entire shop by an order dated November 2, 1977. The court held that that order was legally justified.
Legal Issues Presented
- Whether the Prescribed Authority, when exercising jurisdiction under clause (rr) of Section 43(2) of the 1972 Act, may take subsequent events into consideration or otherwise modify the permission granted under Section 3 of the 1947 Act so as to order eviction of a tenant from a portion of the building even though permission was granted in respect of the entire building.
Arguments of the Parties
Tenant's Arguments
- The tenant submitted that, under clause (rr), the Prescribed Authority can take into account subsequent events in order to satisfy itself that the ground on which permission was obtained under the old Act will be satisfied by ordering eviction from a specified portion rather than from the whole building.
Landlord's / Respondent's Arguments (as described)
- The opposing argument was that clause (rr) is a substitute for a suit under the old Act and affords a speedier remedy to obtain the same relief — eviction from the building under tenancy — and that permitting the Prescribed Authority to consider subsequent events and order partial eviction would render clause (rr) illusory and defeat the legislative purpose of providing a quicker remedy.
- It was further pointed out that under the old Act the District Magistrate could grant permission only in relation to the building under tenancy and a subsequent suit necessarily related to eviction from the building as a whole; clause (rr) was enacted to mirror that relief by a faster method.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Tara Chand v. Prescribed Authority | Holds that subsequent events or facts cannot be considered and that the Prescribed Authority is bound to order eviction according to the permission granted under the old Act. | The court accepted this authority as laying down the law correctly and relied on it to support the proposition that clause (rr) does not permit consideration of subsequent events or modification to order partial eviction. |
| Smt. Sarju Devi v. Prescribed Authority, Kanpur | Earlier Division Bench had read the phrase "shall order the eviction of the tenant from the building under tenancy" as permitting eviction from the entire building or any portion thereof, allowing consideration of relative hardship and subsequent events. | The court declined to follow and disapproved the decision in Smt. Sarju Devi, distinguishing the statutory schemes and explaining that the earlier Division Bench overlooked the distinction between applications under Section 21(1) and the limited operation of clause (rr) of Section 43(2). |
Court's Reasoning and Analysis
The court's analysis proceeds from a textual and purposive reading of clause (rr) of Section 43(2) of the 1972 Act in relation to Section 21 of the same Act and the prior Section 3 permission under the 1947 Act. Key points of the court's reasoning, based strictly on the opinion, are summarized below.
- Textual scope of clause (rr): Clause (rr) allows the landlord, where a permission under Section 3 of the old Act has been obtained and has become final on grounds specified in Section 21(1) or (2), to apply to the Prescribed Authority for eviction under Section 21, and mandates that the Prescribed Authority "shall order the eviction of the tenant from the building under tenancy," while also stating that it "shall not be necessary for the Prescribed Authority to satisfy itself afresh as to the existence of any ground as aforesaid."
- Two-stage enquiry under Section 21(1): When an application is made generally under Section 21(1), the Prescribed Authority must first be satisfied that any of the grounds in Section 21(1) exist; once satisfied, it must then determine whether eviction should be from the building under tenancy or any specified part thereof. These are distinct stages.
- Limited jurisdiction under clause (rr): Clause (rr) restricts the Prescribed Authority's role to verifying only that the permission under the old Act was granted on grounds that correspond to Section 21(1) or (2). The phrase "it shall not be necessary" was interpreted by the court to mean it shall not be open to the Prescribed Authority to reopen or re-examine the existence of those grounds; the old permission is treated as final and conclusive on the grounds.
- Absence of express authority for partial eviction in clause (rr): The court noted that clause (rr) expressly authorizes eviction "from the building under tenancy" and does not include the additional phrase "or any specified part thereof" that appears in Section 21(1). The omission is significant: had the Legislature intended to permit partial eviction under clause (rr), it could have added identical language.
- Purpose and effect of clause (rr): Clause (rr) is a legislative device to provide a speedier alternative to a suit under the old Act for vindicating a permission under Section 3 of the 1947 Act. Because the District Magistrate under the old Act could grant permission only in relation to the building under tenancy (not merely a part), the relief obtainable via clause (rr) is similarly the relief of eviction from the building under tenancy as a whole.
- Policy consideration against tenant's construction: Accepting the tenant's submission that clause (rr) permits consideration of subsequent events and partial eviction would discourage landlords from using the faster clause (rr) remedy (because they would risk having their application reduced to a partial eviction), thereby defeating the statutory objective of providing a speedier remedy. The court regarded such an outcome as inconsistent with legislative intent.
- Precedential alignment and disapproval: The court agreed with Tara Chand (that subsequent events cannot be considered and eviction must follow the permission) and disagreed with the Smt. Sarju Devi decision, which equated the jurisdiction under Section 21(1) with the jurisdiction under clause (rr) and permitted partial eviction.
- Application to the facts: On the undisputed facts — permission under Section 3 of the old Act existed, related to grounds in Section 21, and had become final — the Prescribed Authority's refusal to consider subsequent events and its direction for eviction from the entire shop (order dated November 2, 1977) were held to be legally justified.
Holding and Implications
Holding: The referred question is answered in the negative: the Prescribed Authority, when acting under clause (rr) of Section 43(2) of the 1972 Act, does not have jurisdiction to take subsequent events into account or to modify the earlier permission so as to order eviction from only a portion of the building; it must order eviction from the building under tenancy as contemplated by clause (rr).
Implications:
- The direct effect on the parties in the case at hand is that the Prescribed Authority's order dated November 2, 1977 directing eviction of the petitioner from the entire shop was justified and stands.
- The court accepted the principle in Tara Chand that subsequent events cannot be considered under clause (rr) and expressly declined to follow the contrary view taken in Smt. Sarju Devi; the earlier Sarju Devi decision was disapproved in this regard.
- The decision reinforces that clause (rr) provides a limited, speedier statutory remedy mirroring the relief originally obtainable under the 1947 Act (i.e., eviction from the building under tenancy), and does not expand the Prescribed Authority's powers to re-open or revisit the factual basis of the prior permission or to order partial eviction under that clause.
- The opinion does not elaborate broader consequences beyond the statutory interpretation and the particular factual outcome; its practical consequence is to restrict the Prescribed Authority's remedial discretion when acting specifically under clause (rr) of Section 43(2).
Satish Chandra, C.J:— A Division Bench felt unable to follow the law laid down by another Division Bench in Smt. Sarju Devi v. Prescribed Authority, Kanpur.1 It has referred the following question of law to a larger Bench:
“Whether the Prescribed Authority, while exercising jurisdiction under Clause (rr) of Section 43(2) of the 1972 Act, has jurisdiction to take subsequent events into consideration or to modify the permission granted under Section 3 of the 1947 Act and to evict a tenant from a portion of the building even though permission may have been granted in respect of the entire building?”
2. Section 43 of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction Act, 1972 deals with repeal and savings. By sub-section (1), it repeals the U.P (Temp.) Control of Rent and Eviction Act, 1947. Sub-section (2) provides:—
“(2) Notwithstandings such repeal (rr). Where any permission referred to in Section 3 of the old Act has been obtained on any ground specified in sub-section (1) or sub-section (2) of Section 21, and has become final, either before the commencement of this Act, or in accordance with the provisions of this sub-section, after the commencement of this Act, whether or not a suit for the eviction of the tenant has been instituted the landlord may apply to the Prescribed Authority for his eviction under Section 21, and thereupon the Prescribed Authority shall order the eviction of the tenant from the building under tenancy, and it shall not be necessary for the Prescribed Authority to satisfy itself afresh as to the existence of any ground as aforesaid, and such order shall be final and shall not be open to appeal under Section 22.”
3. The conditions for the application of clause (rr) are:—
(a) permission under Section 3 of the old Act, namely Act of 1947, has been granted and has become final;
(b) the permission has been granted on any ground specified in sub-section (1) or sub-section (2) of Section 21 of this Act:
Then, if the landlord applies for the eviction of the tenant under Section 21, the Prescribed Authority shall order his eviction from the building under tenancy.
4. It is noticeable that the jurisdiction of the Prescribed Authority is to order the eviction of the tenant from the building under tenancy. It has not expressly been conferred any power to order eviction from a portion or part of the building under tenancy. The opening clause of this provision entitles the Prescribed Authority to find that the permission under Section 3 of the Old Act has been obtained on any ground specified in sub-section (1) or sub-section (2) of Section 21 of the present Act and that the same has become final. This is the beginning as well as the end of his jurisdiction to record findings. If the conclusion is in the affirmative it has no discretion but to order the eviction of the tenant from the building under tenancy.
5. This leads us to Section 21. Section 21 porvides:—
“21. Proceedings for release of building under occupation of tenant.—
(1) The Prescribed Authority may, on an application of the landlord in that behalf order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely, ………”
6. Then follow the grounds. They are given in Clauses (a) and (b). Clause (a) deals with bonafide requirement of the landlord. Clause (b) refers to the building being in a dilapidated condition and is required for purposes of demolition and new constructions. Sub-section (2) mentioned the grounds for eviction from any surplus land appurtenant to the building under tenancy. In that event eviction of the tenant could be ordered from the surplus land.
7. Under Section 21(1) of the Act, if the Prescribed Authority is satisfied that the grounds mentioned in it exist it has jurisdiction to order the eviction of the tenant ‘from the building under tenancy’ or ‘any specified part thereof.’
8. The landlord has to satisfy the Prescribed Authority that the grounds mentioned in Section 21 exist. On such satisfaction having been reached, the Prescribed Authority has jurisdiction to consider the further question whether in order to satisfy the ground alleged and established by the landlord the eviction of the tenant be ordered from the building under tenancy or any specified part thereof. The two stages of the enquiry are distinct and separate.
9. The question whether the eviction of the tenant be ordered from the building under tenancy or any specified part thereof, is obviously not determination of the existence of the grounds specified in sub-section (1) or sub-section (2) of Section 21. Clause (rr) does not authorise the Prescribed Authority to go into this question or determine it.
10. On the other hand, clause (rr) takes special care to provide that the Prescribed Authority shall not reopen the first question either, namely to satisfy itself all over again as to the grounds. The last part of clause (rr) says:—
“and it shall not be necessary for the Prescribed Authority to satisfy itself afresh as to the existence of any ground as aforesaid.”
11. In the scheme of clause (rr), it is apparent that the phrase ‘it shall not be necessary’ means ‘it shall not be open’. In other words, the Prescribed Authority has no jurisdiction to reopen the question and satisfy itself afresh that the grounds specified under sub-section (1) or sub-section (2) of Section 21 do exist. In this respect, the order granting permission under Section 3 of the old Act is final and conclusive. Its jurisdiction is only to see that the grounds on which the permission was obtained answer the description of the grounds specified under sub-section (1) or sub-section (2). If it is so satisfied, then it has no option but to order eviction of the tenant ‘from the building under tenancy’.
12. If the Legislature had intended to confer jurisdiction on the Prescribed Authority to order the eviction of the tenant from any specified part of the building under tenancy, it would have added the phrase ‘or any specified part thereof after the phrase ‘from the building under tenancy’ ‘occurring in clause (rr), just as it has done in Section 21(1).
13. The conclusion seems irresistible that the Prescribed Authority has no power to consider the question whether the grounds shall be satisfied by ordering the eviction of the tenant from any specified part of the building under tenancy.
14. We have to keep in mind that clause (rr) of Section 43 operates notwithstanding the repeal of the old Act of 1947. It provides for satisfaction of the order or permission granted under Section 3 of the old Act by the speedier method of eviction under Section 21 of the present Act. Under the old Act of 1947, the landlord after obtaining permission under Section 3 of that Act had to file a suit for eviction of the tenant. Clause (rr) of Section 43(2) provides a speedier remedy, no matter whether a suit had been instituted.
15. Under the old Act of 1947, permission could be granted in relation to the building under tenancy. The District Magistrate had no power to grant permission only in respect of any specified part thereof. Under that Act, a suit had to be filed for the eviction of the tenant on the basis of the permission. The suit naturally extended to eviction from the building under tenancy. It could not be for eviction from any specified part of the building under tenancy. Clause (rr) of Section 43 provides a speedier remedy for the same relief. To achieve the same relief, it specifically says that ‘the Prescribed Authority shall under the eviction of the tenant from the building under tenancy.’
16. For the tenant it was submitted that under clause (rr), the Prescribed Authority can take into account subsequent events in order to satisfy itself that the ground on which the permission was obtained under the old Act will be satisfied by ordering eviction from any specified portion of the building.
17. Clause (rr) operates as a substitute for a suit for eviction based on the permission granted under the old Act. Acceptance of the submission on behalf of the tenant would result in non-use of clause (rr) in many cases. Under clause (rr), as construed on behalf of the tenant the Prescribed Authority will have jurisdiction to order eviction from any specified part of the building. No landlord is going to take the risk of applying under Section 21 read with Clause (rr) of Section 43(2) for the eviction of a tenant, because then he would run the risk of his attempt being rendered futile in getting the entire building suit. In that event, clause (rr) would become an illusory provision. The object of providing speedier relief of eviction of the tenant to such landlords would become nugatory and the object of clause (rr) would stand defeated. Such an intention cannot be imputed to a same legislature.
18. In our view, the question whether the eviction of the tenant has to be ordered from any specified part of the building under tenancy is not within the jurisdiction of the Prescribed Authority, while acting under clause (rr), irrespective of the occurrence of subsequent events which may make it improper to order the eviction from the entire building, or which may tend to establish that the need set up by the landlord can be satisfied by ordering eviction of the tenant from a specified part of the building under tenancy.
19. 20. In Tara Chand v. Prescribed Authority, 2 it was held that subsequent events or facts cannot be considered and the Prescribed Authority is bound to order eviction according to the permission. This case lays down the law correctly.
20. We may now consider the case of Smt. Sarju Devi (supra) which has caused this reference.
21. When an application is made under Section 21, the Prescribed Authority has to satisfy itself that the grounds mentioned in Sections 21(1) and (2) exist. It then considers whether the established grounds can be satisfied by ordering eviction either from the whole or part of the accommodation. But, under clause (rr), the second part of the enquiry is forbidden.
22. In Smt. Sarju Devi, (supra), the Division Bench observed:—
“Consideration of relative hardship to the landlord and the tenant, may also persuade the Prescribed Authority not to order eviction of the tenant from the entire house, but to order his eviction from a portion of the house. When such is the legal posit on when the landlord makes an application for the first time under Section 21 of the Act, we do not see why the legal position should be different under Clause (rr) of Section 43(2) of the present Act. The words ‘shall order the eviction of the tenant from the building under tenancy’ should, in our opinion, be read as ‘shall order eviction of the tenant from the entire building or any portion thereof.”
23. In the aforesaid case, the Division Bench equated the jurisdiction of the Prescribed Authority while deciding an application under Section 21 of the present Act with the jurisdiction it has been conferred for giving effect to the permission granted under Section 3 of the old Act. As explained above, the two situations are different. Clause (rr) specifically prohibits the Prescribed Authority from satisfying itself afresh that the grounds exist. It has only to see that the grounds on which permission was granted under the old Act are such as answer the description of the grounds mentioned in sub-sections (1) or (2) of Section 21. It has no power to satisfy itself as to any other matter. While disposing of an application under Section 21(1), it has an additional jurisdiction to decide whether the grounds established by the landlord require eviction from the whole or a part of the building. This latter jurisdiction has not been given to the Prescribed Authority while dealing with an application under clause (rr) for eviction of the tenant on the basis of the permission granted under the old Act. That is why the two situations cannot be equated. The Division Bench, if we may say so with respect, fell into error in overlooking this distinction. We are unable to approve the decision in Smt. Sarju Devi. On facts, it is undisputed that the landlord was granted permission under Section 3 of the old Act. It was in respect one of the grounds mentioned in Section 21, and that the permission became final. The Prescribed Authority when approached under Section 21 read with Section 43(2)(rr) of the present Act refused to consider subsequent events and directed the petitioner's eviction from the entire shop vide order dated November 2, 1977. The order was in law justified.
24. We answer the question referred to us in the negative against the petitioner and in favour of the respondents.
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