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Ravi Nath Misra v. City Magistrate/R.C & E.O, Kanpur Nagar And Others

Allahabad High Court

May 7, 2007

Judgment

Subsequent
References

CaseIQ

Smart Summary (Beta)

Structured Summary of Opinion — S.U. Khan, J.

Factual and Procedural Background

This writ petition challenged two orders dated 5.9.2002 and 30.9.2002 passed by respondent No. 1: an order declaring vacancy of the accommodation in dispute and an order releasing the accommodation in favour of the landlord under section 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (the "Act").

The accommodation in dispute is situated at first floor, numbered 24/93 at Patkapur, Kanpur Nagar, consisting of two rooms, latrine and bathroom, with an additional portion described by the landlord as a kitchen and by the tenant-petitioner as a storeroom.

Proceedings before the Rent Control and Eviction Officer were initiated on an allotment application by respondent No. 2 (Ram Lakhan); the landlord later filed a release application. The Rent Control and Eviction Officer, by order dated 5.9.2002, declared vacancy on the ground that the tenant (or a member of his family) had acquired another residential house, invoking section 12(3) of the Act.

The writ petition was dismissed in default on 29.11.2005. The petitioner filed an application to set aside the dismissal on 1.5.2006; the petition was restored to its original number. The petitioner had been dispossessed on 1.5.2006. On restoration, an order dated 4.5.2006 stayed eviction until 19.5.2006 if eviction had not already occurred. The petitioner filed an affidavit on 18.5.2006 alleging partial ejectment on 1.5.2006, though the affidavit did not state the extent of partial dispossession. During arguments, the landlord's counsel contended complete possession had been taken on 1.5.2006.

One of the respondents, Sri Har Narain Vyas (described in the writ petition as of unsound mind and represented through his wife Shrimati Hemant Vyas), died in June 2004. Substitution and impleadment applications were filed; the court allowed substitution and impleadment including Shrimati Hemant Vyas and other heirs.

Legal Issues Presented

Whether, for the purposes of section 12(3) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, vacancy is deemed to arise when the tenant or a family member acquires a residential building before the date the Act became applicable to the particular tenanted accommodation.
How the words "commencement of the Act" in the proviso to section 12(3) are to be interpreted — whether they mean the date the Act came into force (15.7.1972) or the date the Act became applicable to the particular building.
Whether the proviso to section 12(3) (which refers to a member of the family having "built" a residential building) applies to a purchase of a residential building.

Arguments of the Parties

Petitioner (tenant) — summarized from the record

The tenant asserted that the accommodation in dispute was let out for commercial purposes and was never used for residential purposes (i.e., contested the Rent Control Officer's finding that it was residential).
The tenant filed applications to substitute and implead heirs/legal representatives of a deceased respondent and alleged partial dispossession on 1.5.2006 (though without stating the precise extent).

Respondents / Landlord — summarized from the record

The landlord (respondents' counsel) asserted that the accommodation was let out for residential purposes and contended that complete possession had been taken on 1.5.2006.
Respondents' senior counsel (Sri V.K.S. Chaudhary) argued that the proviso to section 12(3) should be read as referring to the date on which the Act became applicable to the particular building (i.e., not necessarily the date the Act came into force), and that section 12(3) and its proviso operate in different fields; additionally, arguments invoking purposive interpretation and the effect of section 2(2) were advanced in support of respondents' position.
The landlord's counsel also argued procedural points regarding substitution/impleadment — that Shrimati Hemant Vyas should have been substituted independently (though the court allowed substitution/impleadment and observed it would make no practical difference).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mangi Lal v. Additional District Judge, 1980 6 ALR 1 (Full Bench)	Held that section 12(3) of the Act is prospective; interpreted the words "commencement of the Act" to mean 15.7.1972 (the date the Act came into force). Also held that the proviso's wording "had build" does not apply to purchase of a building.	The court relied on this Full Bench to conclude that the Act became applicable in the instant case in 1993 and that the tenant's wife's purchase in 1987 did not trigger vacancy under section 12(3) (and that the proviso does not apply to purchase).
R.D. Ram Nath & Co. v. Girdhari Lal, 1975 ALJ 1	Initially took the view that "commencement of the Act" meant the date on which the Act became applicable to a particular building (a view subsequently not approved by the Supreme Court).	The court recounted the historical conflict in interpretation and noted that this earlier view was not approved by the Supreme Court; it therefore did not follow it.
Kishan v. Manoj Kumar, AIR 1988 SC 999	Supreme Court held that "commencement of the Act" means the date the Act came into force (i.e., 15.7.1972), rejecting the earlier view that it meant the date of applicability to a particular building.	The court followed this Supreme Court authority and applied the interpretation to the proviso of section 12(3), concluding that the proviso's reference to "commencement of the Act" is to 15.7.1972 and thus could not be read to mean the date the Act became applicable to the particular tenanted building in 1993.
Khursheed v. A.D.J., 2004 54 ALR 177	Held that while granting relief against eviction in respect of a building covered by the Rent Control Act, a writ court is empowered to enhance the rent to a reasonable extent.	The court applied this principle in ordering that, upon delivery of possession to the tenant, the tenant shall pay rent at Rs. 1,000/- per month (the court's determination under Khursheed was used to fix the rent payable post-delivery).

Court's Reasoning and Analysis

The court's analysis focused primarily on the proper interpretation and application of section 12(3) of the U.P. Urban Buildings Act, 1972 and its proviso.

The court observed that section 12(3) is prospective in effect and relied upon the Full Bench decision in Mangi Lal which had interpreted the proviso and related language. The Mangi Lal Full Bench had earlier held that the words "commencement of the Act" should be understood as the date the Act came into force (15.7.1972) and that the proviso's phrase "had build" applies to building constructed and does not cover purchase of a building.
The court recounts a line of earlier decisions (including R.D. Ram Nath & Co.) that had initially read "commencement" as when the Act became applicable to a particular building, but notes that the Supreme Court later rejected that approach and consistently held (culminating in Kishan v. Manoj Kumar) that "commencement of the Act" means the date the Act came into force, i.e., 15.7.1972.
Applying the Supreme Court authority (Kishan) and the Full Bench interpretation in Mangi Lal, the court concluded that the proviso to section 12(3) must be read as referring to the Act's commencement in 1972 and that the proviso's language related to building ("had build") does not encompass a purchase. Therefore the purchase of a residential house by the tenant's wife in 1987 (before the Act became applicable to the tenanted accommodation in 1993) did not create vacancy under section 12(3).
The court expressly declined to decide the disputed factual question whether the accommodation had been let for residential or commercial purposes — it stated it neither confirmed nor set aside the Rent Control Officer's finding on that matter because it considered it unnecessary to adjudicate that factual controversy for the purposes of the legal question under consideration.
The court rejected respondents' arguments that the proviso should be read to mean the date the Act became applicable to the particular building, and rejected the submission that purposive interpretation would alter the clear meaning as given by Supreme Court precedent.
On consequence and remedy, having held that no vacancy arose under section 12(3) due to the 1987 purchase, the court set aside both impugned orders (vacancy declaration and release order) and issued consequential directions on possession, damages, and rent based on its equitable powers and precedent (Khursheed) concerning enhancement of rent by a writ court.

Holding and Implications

Holding: The writ petition is ALLOWED; both impugned orders (the order declaring vacancy dated 5.9.2002 and the release order dated 30.9.2002) are set aside.

Implications and direct consequences of the decision:

The landlords are directed to deliver possession of the disputed property to the tenant within three months from the date of the judgment.
If the landlords fail to deliver possession within three months, they shall be liable to pay damages at the rate of Rs. 1,000 per month to the tenant until delivery of possession.
The tenant is entitled to pursue other remedies available to him for taking possession (as noted in the opinion).
From the date on which possession is delivered by the landlord, the tenant shall be liable to pay rent at Rs. 1,000 per month — this figure is fixed by the court applying the principle in Khursheed v. A.D.J. that a writ court can enhance rent reasonably when granting relief against eviction.
The court reached these results by applying binding precedent (including the Supreme Court's interpretation in Kishan v. Manoj Kumar and the Full Bench in Mangi Lal). The opinion does not purport to establish a new principle of law beyond applying those precedents.

Petition Allowed.

Show all summary ...

S.U Khan, J.:— Heard Sri A.N Sinha, learned Counsel for the petitioner and Sri V.K.S Chaudhary learned Senior Counsel assisted by Sri V.C Nayak, learned Counsel for the respondents, legal representatives of deceased respondent No. 3 Sri Har Narain Vyas and Shrimati Hemant Vyas widow of late Har Narain Vyas, who filed impleadment application.

2. This writ petition is directed against the order-dated 5.9.2002 passed by the respondent No. 1 declaring vacancy of the accommodation in dispute and order dated 30.9.2002 releasing the accommodation in dispute in favour of landlord under section 16 of U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ‘Act’). Accommodation in dispute is situate at first floor consisting of two rooms, latrine and bathroom. There is one more portion in the accommodation in dispute, which is described as kitchen by the landlord and as storeroom by the tenant-petitioner. Accommodation in dispute is numbered as 24/93 and is situate at Patkapur, Kanpur Nagar.

3. This writ petition was dismissed in default on 29.11.2005 Application for setting aside the said order was filed on 1.5.2006 and the writ petition was restored to its original number. On 1.5.2006 the petitioner had been dispossessed. On restoration application on 4.5.2006, an order was passed staying the eviction of the petitioner till 19.5.2006 if he had not already been evicted. Petitioner filed an application on 18.5.2006 along with affidavit. In paragraphs 4 and 8 of the said affidavit it was stated that on 1.5.2006 partial ejectment took place behind the back of the petitioner. However, extent of partial possession and partial dispossession was not given. During arguments, learned Counsel for the landlord stated that complete possession had been taken on 1.5.2006

4. Proceedings before Rent Control and Eviction Officer were initiated on the allotment application on respondent No. 2 Ram Lakhan. Thereafter release application was also filed by the landlord. In this writ petition, respondent No. 3 was described as follows :

“3. Sri Har Narain Vyas adult son of Late Laxmi Narain Vyas (unsound mind), through Shrimati Hemant Vyas, adult wife of Sri Har Narain Vyas, resident of premises No. 26/32 Patkapur, Kanpur Nagar.”

5. Respondent No. 4 in the writ petition is Siddharth Vyas son of Har Narain Vyas. Har Narain Vyas died in June 2004 leaving behind his wife Shrimati Hemant Vyas, his son Siddharth Vyas and four other children as his heir and legal representative. Substitution application was filed by tenant-petitioner on 10.11.2005 In Para 3 of the affidavit filed in support of substitution application it was mentioned that Sri Har Narain Vyas was of unsound mind and represented by his wife Shrimati Hemant Vyas, who was arrayed as opposite party along with her one son Siddharth Vyas, hence only they—heirs of Har Narain Vyas should be substitute at his place. Sri V.C Narayan learned Counsel has filed vakalatnama on behalf of the other four proposed heirs. Sri Nayak has also filed an impleadment application on behalf of Shrimati Hemant Vyas. Learned Counsel for the landlord has argued that Shrimati Hemant Vyas should have been sought to be substituted independently. Absolutely no difference will be made in either of the two contingencies, i.e whether Shrimati Hemant Vyas is independently added as one of the legal representatives of Har Narain Vyas or she is treated to be already impleaded as respondent No. 3 in the writ petition. Accordingly, substitution application as well as impleadment applications bearing No. 131783 of 2005 are allowed. It may be mentioned that Shrimati Hemant Vyas in her application had also raised five preliminary objections.

6. The matter was registered before Rent Control and Eviction Officer/City Magistrate, Kanpur Nagar as case No. 53 of 2000 Ram Lakhan v. Ravi Nath Misra. Rent Control and Eviction Officer through order dated 5.9.2002 declared the vacancy holding that the accommodation in dispute was let out for residential purposes with effect from 1.6.1981 and was assessed for the house tax for the first time in 1983. Rent Control and Eviction Officer further held that wife of the tenant-petitioner had purchased another residential house on 6.7.1987 bearing No. 198 situate at Safipur-II, Kanpur Nagar. Rent Control and Eviction Officer ultimately held that in view of purchase of the house by wife of the tenant, vacancy came into existence in view of section 12 (3) of the Act, which is quoted below :

“(3) In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy :

Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date.”

7. There was a very serious controversy between the parties regarding the purpose for which the house in dispute was let out. Landlord asserted that it was let out for residential purpose. Tenant asserted that it was let out for commercial purpose and was never used for residential purpose. Rent Control and Eviction Officer held that it was residential accommodation, let out for residential purpose and used for residential purpose. I do not propose to decide this controversy in this writ petition. I am neither confirming nor setting side the said findings of Rent Control and Eviction Officer for the reason that I do not consider it necessary to Judge the validity of the said finding.

8. A plain reading of section 12 (3) of the Act indicates that it is prospective. It has been held by a five Judges Full Bench of this Court in Mangi Lal v. Additional District Judge . 1980 6 ALR 1 FB., that the said section is prospective. If tenant or his family member has acquired a house before the act becomes applicable on the tenanted accommodation then section 12 (3) of the Act will not apply. In the instant case the act became applicable on the house in dispute in 1993. Wife of the tenant acquired another residential house in 1987, hence the aforesaid section is not applicable. Learned Counsel for the respondents has vehemently argued that by virtue of proviso to the aforesaid section vacancy came into existence after one year form the date on which Act became applicable to the building in dispute. Learned Counsel has argued that the words ‘commencement of the Act’ used in the aforesaid proviso shall be read as the date on which Act becomes applicable to a particular building and not 15.7.1972 when the Act was enforced. Firstly in the aforesaid Full Bench the said words have been interpreted to mean 15.7.1972 Secondly exactly similar words are used in section 39 of the Act. Initially he view of this Court as in R.D Ram Nath & Co. v. Girdhari Lal . 1975 ALJ page 1. (consistently followed thereafter) was that the words ‘commencement of the Act’ meant the date on which the Act became applicable to a particular building. However, Supreme Court did not approve the said view. The Supreme Court held that commencement of the Act means the date on which the Act came into force i.e 15.7.1972 Supreme Court took this view in several cases, the last case being “Kishan v. Manoj Kumar . AIR 1988 SC 999..” In my opinion the same interpretation will have to be given to the words ‘commencement of the Act’ used in the aforesaid proviso, as has been given by the Supreme Court under section 39 of the Act.

9. Sri V.K.S Chaudhary, learned Senior Counsel for the respondents, argued that the section 12 (3) and its proviso operate in different fields and the words commencement of the Act refer to the date on which Act becomes applicable to a particular building. Learned Counsel has further argued that the Act applies to every building and by virtue of section 2 (2) of the Act, the application of the Act is suspended for certain period. The oral arguments have been supplemented by written arguments, which are placed on record.

10. However, in view of aforesaid authority of Supreme Court in “Kishan v. Manoj Kumar”4, I am unable to agree with the contention of the learned Senior Counsel for the respondents.

11. Moreover in the Full Bench authority of Mangi Lal (supra), it has also been held that the words used in the proviso to section 12 (3) are “had build” hence the proviso does not apply to purchase of building (Paragraphs 15 and 16). In the instant case also wife of the tenant has only purchased a house and not built any house.

12. It had also been argued on behalf of the respondents that principle of purposive interpretation should be applied. In my opinion, applying the said principle will not in any way change, the interpretation of the words ‘commencement of the Act’ given by the Supreme Court.

13. Accordingly, I hold that no vacancy came into existence on the ground that wife of tenant purchased a house in 1987.

14. Accordingly writ petition is allowed. Both the impugned orders declaring the vacancy and releasing the property are set aside.

15. As release order has been set aside, hence the landlords shall deliver possession of the property in dispute to the tenant within three months failing which they shall be liable to pay damages @ Rs. 1,000/- per month to the tenant until delivery of possession. Apart from it, tenant will also be entitled to pursue such remedies, which are open to him for taking possession.

16. I have held in Khursheed v. A.D.J . 2004 54 ALR 177 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act, Writ Court is empowered to enhance the rent to a reasonable extent. Accordingly, it is directed that from the date on which the possession is delivered by landlord, the tenant shall be liable to pay rent @ Rs. 1,000/- per month.